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					   GOOD LAWS, GOOD FOOD:




PUTTING STATE FOOD POLICY TO WORK FOR
          OUR COMMUNITIES



                           November 2012
                          WRITTEN BY


THE   HARVARD LAW SCHOOL FOOD LAW AND POLICY CLINIC

                   UNDER THE SUPERVISION OF
                      EMILY BROAD LEIB

                   IN PARTNERSHIP WITH


               MARK WINNE ASSOCIATES

                 Cover photos courtesy of Alli Condra




                   MARK
             A     WINNE
                       SSOCIATES
                                                            TABLE OF CONTENTS

INTRODUCTION ............................................................................................................................. 1
   About This Toolkit ............................................................................................................................................ 2
   About the Authors ............................................................................................................................................ 4
SECTION I: GENERAL LEGAL SETTING ....................................................................................................... 5
   Overview........................................................................................................................................................... 5
   Federalism and the Interplay of Federal, State, Local, & Tribal Law ................................................................ 5
   Understanding Legislation & Regulation ........................................................................................................10
   Getting to Know Your State Government ........................................................................................................14
   State Food System Assessment .........................................................................................................................16
   Conclusion .......................................................................................................................................................17
SECTION II: FOOD SYSTEM INFRASTRUCTURE .................................................................................. 18
   Overview.......................................................................................................................................................... 18
   Production .......................................................................................................................................................18
   Processing ........................................................................................................................................................24
   Aggregation & Distribution ............................................................................................................................. 25
   Retail ................................................................................................................................................................ 26
   Food Waste Management .................................................................................................................................27
   Conclusion .......................................................................................................................................................27
SECTION III: LAND USE & PLANNING ............................................................................................. 28
   Overview.......................................................................................................................................................... 28
   Basic Concepts of Land Use & Planning ..........................................................................................................28
   Farmland Preservation Techniques: State Land Use Policies ...........................................................................29
   Farmland Preservation Techniques: Restricting Land to Agricultural Uses ....................................................30
   Other Farmland Preservation Techniques .......................................................................................................36
   Conclusion .......................................................................................................................................................39
SECTION IV: FOOD ASSISTANCE PROGRAMS .................................................................................... 40
   Overview.......................................................................................................................................................... 40
   SNAP ................................................................................................................................................................ 40
   WIC ..................................................................................................................................................................44
   Maximizing Food Assistance Program use to Benefit the Local Food Economy ..............................................48
   Conclusion .......................................................................................................................................................53
SECTION V: CONSUMER ACCESS & CONSUMER DEMAND .................................................................. 54
   Overview.......................................................................................................................................................... 54
   Improving Consumer Access ........................................................................................................................... 54
   Improving Consumer Demand for Healthy Foods ........................................................................................... 60
   Conclusion .......................................................................................................................................................62
SECTION VI: FARM TO INSTITUTION............................................................................................... 63
   Overview.......................................................................................................................................................... 63
   What is Farm to Institution? ............................................................................................................................ 63
   Farm to State Agencies .....................................................................................................................................65
   Farm to School .................................................................................................................................................68
   Farm to University Programs ........................................................................................................................... 73
   Farm to Other Institutions ............................................................................................................................... 74
   Conclusion .......................................................................................................................................................76
SECTION VII: SCHOOL FOOD & EDUCATION ................................................................................... 77
   Overview.......................................................................................................................................................... 77
   School Nutrition ..............................................................................................................................................77
   Health & Nutrition Education .........................................................................................................................84
   Conclusion .......................................................................................................................................................88
SECTION VIII: FOOD SAFETY & PROCESSING ................................................................................... 89
   Overview.......................................................................................................................................................... 89
   Overview of Food Safety Regulations: Federal & State ....................................................................................89
   Quality Certification Programs for Agricultural Producers ............................................................................91
   Food Safety Regulations for Processed Foods ..................................................................................................93
   Meat, Poultry, & Egg Processing for Small-Scale Producers............................................................................96
   Conclusion ..................................................................................................................................................... 101
SECTION IX: RESOURCES ............................................................................................................ 102
INTRODUCTION
As an increasing number of consumers look to influence the system that brings food from the field to their
dinner plates, they often find that it is policy that they are looking to change. “Food policy”—a term used to
describe the set of laws and regulations that inform how, why, and when food is produced, transported,
distributed, and consumed—has only recently emerged as an identified field of study. This recent
emergence is largely a result of the piecemeal nature of food and agricultural policy in the United States.
The U.S. food system is governed by a combination of laws and regulations spanning various agencies and
decision-makers from the federal, state, and even local level. Because no one governmental body sets or
creates food policy independently, advocates only recently began to realize the important impacts of these
often scattered policy decisions on the foods that end up in their grocery stores or on their tables.

The laws and policies that shape our nation’s food system affect all of the processes that bring us food from
farm to fork, including, for example, crop subsidies and financial support for farmers, food safety decisions,
nutritional guidance, and food assistance programs. These laws and programs are often set at a federal level,
such as the subsidies for commodity crops created by the federal Farm Bill, or the Supplemental Nutrition
Assistance Program (SNAP, formerly food stamps), the framework of which is determined by federal law
but implemented by individual states. States, however, also have considerable latitude to enact, implement,
regulate, and enforce their own food programs and policies, shaping their own unique food systems. The
tools they are given to create healthy, economically viable, and equitable food systems range from
identifying where school lunches will be sourced to determining what funding and training will be provided
to help local farms expand. Yet, as consumers, policymakers, and food advocates are realizing, many state
governments have not necessarily been utilizing these tools to create just, sustainable, or comprehensive
state food policies. Though this is not a simple task, there is immense opportunity to influence a state’s food
system through the collaborative efforts of stakeholders and advocates within the states.

In response to this increasing interest in and concern about the production of food in this country, citizens
and communities have come together via state and local food policy councils with the intention to
strengthen local and state food systems. A food policy council provides a unique forum for diverse
stakeholders to address the common concerns about food policies that arise in their city, county, or state,
including topics such as food security, farm policy, food regulations, environmental impacts, health, and
nutrition. Stakeholders include a range of people invested in the food system, such as farmers, city and state
officials, non-profit organizations, chefs, food distributors, food justice advocates, educators, health
professionals, and concerned citizens. With the lack of government agencies (at any level) devoted to the
sole task of regulating and improving food policy, food policy councils have emerged as innovative and
much-needed mechanisms to identify and advocate for food system change.

This change has already begun. Over the past few years, the number of local and state food policy councils
has ballooned. According to the Community Food Security Coalition and Mark Winne Associates, the
number has nearly doubled, increasing from around 111 food policy councils in 2010 to 193 councils in
2012.1 The proliferation of food policy councils has been incredibly exciting, as they have proven their
ability to serve as representative and effective coalitions to advocate for healthy, environmentally
sustainable, economically beneficial, and socially just food policies. They have been quite successful at
strengthening connections between various stakeholders, researching and reporting on food policy issues,
educating and promoting awareness, and achieving food law and policy change.
1
 Mark Winne and Andrea Sauer, “2012 FPC List Update Analysis,” COMM’Y FOOD SEC. COAL. 1 (May 2012), available at
http://www.foodsecurity.org/FPC/doc/FPC_List_Update_Analysis-May2012.pdf.


                                                                                                                   Introduction | 1
Once created, however, food policy councils often find themselves overwhelmed in attempting to identify
the specific laws and regulations that impact their food policy goals, analyzing these laws and policies, and
ascertaining the legal or policy levers that can be used to improve outcomes. This toolkit was created to
provide a starting place for state food policy councils to understand the basic legal concepts surrounding
state food systems, develop a base of knowledge about the main policy areas, and discover examples and
innovations from other states. As described below, this toolkit is the second part of a two-part series, the
first of which focuses on local-level food law and policy recommendations. As individuals and organizations
seek to inform and influence food law and policy in their cities, counties or states, we hope these toolkits
will provide helpful starting places for their endeavors.

ABOUT THIS TOOLKIT Good Laws, Good Food: Putting State Food Policy to Work for Our Communities was
formulated in response to the recent growth in the number of new state food policy councils. As such, these
state food policy councils are intended to be our main audience. However, this toolkit should also be
helpful to a wide range of individuals and groups—extending from non-profits to state agencies to policy
coalitions—interested in enacting change in their state food systems. The information and advice provided
here is general enough to assist any interested individual or organization, but as our main goal is to serve
state food policy councils, we have emphasized specific suggestions and details geared towards these
entities.

Though many aspects of this guide are applicable to and may reference policy change at several levels of
government, it is important to keep in mind that this is a state food policy toolkit. It thus assumes a focus on
state policy, meaning the laws and policies that are created at the state level, and on state systems of
production, distribution, and consumption. As mentioned above, Good Laws, Good Food: Putting State Food
Policy to Work for Our Communities is the second part of a two-part series, and follows a local food policy
toolkit, Good Laws, Good Food: Putting Local Food Policy to Work for Our Communities, which provides more
specific guidance and examples for local food policy councils and local-level policy change.

These food policy council toolkits are intended as elements of a greater set of information to help food
policy councils with their formation and success. These toolkits were produced in partnership with Mark
Winne Associates, which recently published a manual entitled Doing Food Policy Councils Right: A Guide to
Development and Action.2 This manual helps to provide guidance to interested stakeholders and groups hoping
to form new food policy councils or expand existing food policy councils.

Using this Guide This toolkit is intended to serve as a reference for food policy councils, food
advocates, state policymakers, and non-profit entities. To effectively utilize our toolkit, we recommend
following these steps.
   Take a realistic appraisal of how some of the suggestions, examples, and methods contained in this
      toolkit may fit within your state. Because our toolkit aims to provide an overview that can be useful
      to food policy councils operating in most states in the U.S., it is important to remember that not every
      component of a state food system or every policy suggestion described within will be appropriate to
      your state. You should make sure to consider the applicability and the feasibility of these policy
      recommendations in order to make sure the laws or policies suggested are right for your community.

2
 MICHAEL BURGAN & MARK WINNE, DOING FOOD POLICY COUNCILS RIGHT: A GUIDE TO DEVELOPMENT AND ACTION (Sept. 2012),
http://www.markwinne.com/wp-content/uploads/2012/09/FPC-manual.pdf.


                                                                                                           Introduction | 2
   Use this toolkit piece-by-piece. Our toolkit is designed to provide overviews of a variety of specific
    food policy topics and is not necessarily intended to be read cover-to-cover at one time. Instead, each
    chapter aims to give as complete a summary as possible of a specific topic. We recommend that you
    choose the section that fits with the policy area you are trying to investigate and review that section,
    rather than trying to absorb all of the information in the entire toolkit in one sitting. There may be
    some overlap between sections in order to ensure that each section is complete. We have indicated
    places where you may need to jump between sections in order to get a more complete perspective of
    a particular policy area.
   Read, digest, and explore. In order to keep this toolkit to a manageable size, we have attempted to
    include sufficient detail while also acknowledging the need to limit the scope. We hope that it
    provides a starting place to learn about the governmental, legal, and policy aspects of state food
    policy (to name a few examples of topics covered within). The Resources section includes a range of
    websites, organizations, and reports to provide readers with a wealth of additional food policy
    examples and references to help you enact or strengthen a food policy initiative in your state.

What’s Inside? This toolkit is composed of nine sections that cover a range of potential topics that a
state food policy council may wish to explore. Each section can be treated as an independent entity so that
you may easily access it to reference a particular issue. As mentioned above, where cross-reference to
another section would be helpful, we have included a note to that effect.
   Section I: General Legal Setting lays out some of the basic information relevant to the state
       government’s authority to make laws. This section gives an overview of the types of food law and
       policy regulations that can be implemented at the state level; the relationship between federal, state,
       local, and tribal law; the differences between legislation and regulation; as well as some state
       government agencies with which councils should partner.
   Section II: Food System Infrastructure describes the important roles of the major entities and
       processes that make up a state food system. This section details various policies for which states can
       advocate that encourage and support local food-related businesses at every step of the supply chain,
       including production, processing, aggregation and distribution, retail, and food waste management.
   Section III: Land Use & Planning describes how states can play a role in influencing land use
       policies to facilitate the development of local food systems. This section discusses various farmland
       preservation strategies and ways to restrict land to agricultural uses in order to protect the capacity
       for future local food production.
   Section IV: Food Assistance Programs presents an introduction to the various federal food
       assistance programs, discusses the legal framework and the balance of federal and state control for
       some of the largest programs, and identifies policy changes that states can implement to improve
       participation in the programs and the distribution of benefits.
   Section V: Consumer Access & Consumer Demand lays out some of the ways states can
       increase consumer access to healthy food, by providing more retail food options (such as permanent
       retail establishments, farmers markets, community gardens, and mobile vending retailers) and
       improving transportation options. This section also gives an overview of ways consumer demand can
       be influenced, through labeling, taxes, and bans.
   Section VI: Farm to Institution discusses the variety of ways in which state food policy councils
       can advocate that their states increase the amount of local and regional food served in public
       institutions. This section focuses not only on farm to school (the most well-known type of farm to



                                                                                               Introduction | 3
    institution program), but also shows how other institutions, such as state agencies, universities,
    hospitals, and prisons, can be important places for serving local food.
   Section VII: School Food & Education details the ways in which state food policy councils can
    work with state and local agencies and school districts to improve the quality of food served in school
    meals, as well as create or enhance nutrition education programs. This section also discusses how
    states can change policies regarding reimbursable school meals, competitive foods, and vending
    machines to improve health outcomes.
   Section VIII: Food Safety & Processing presents an overview of the food safety regulations at
    the federal and state level and explores ways state food policy councils can advocate for state food
    safety regulations that protect the public health while not stifling the development of new food
    producers and vendors. This section includes a discussion of food safety regulations with regard to
    processing of meat, poultry, and eggs, as well as “cottage foods” (foods produced in a home kitchen).
   Section IX: Resources includes a variety of general and specific resources that may be helpful to
    state food policy councils in order to access additional details and information.

ABOUT THE AUTHORS               This toolkit is the product of hard work by numerous staff, students,
partners, and volunteers who have been working with the Harvard Food Law and Policy Clinic and Mark
Winne Associates.

The primary authors of this toolkit are Emily Broad Leib, Director of the Harvard Food Law and Policy
Clinic, and Alli Condra, Clinical Fellow in the Harvard Food Law and Policy Clinic. The Food Law and
Policy Clinic, a division of the Harvard Law School Center for Health Law and Policy Innovation, was
established in 2010 to connect Harvard Law students with opportunities to provide pro bono legal
assistance to individuals and communities on various food policy issues. The Clinic aims to increase access to
healthy foods, prevent diet-related diseases such as obesity and type 2 diabetes, and assist small farmers and
producers in participating in local food markets. One of its key initiatives is to assist with the development,
promotion, and legal and policy research needs of state and local food policy councils. Numerous Harvard
Law School students, interns, and volunteers spent countless hours researching and drafting this toolkit.
The student and volunteer authors involved in producing this guide were: Emilie Aguirre, Kathleen Eutsler,
Duncan Farthing-Nichol, Caitlin Foley, Yasmin Ghassab, Shannon Itoyama, Emma Kravet, Abram
Orlansky, and Jacob Slowik.

This toolkit was created in partnership with Mark Winne, community food activist, writer, and trainer with
over 40 years of experience, and the principal of Mark Winne Associates. Prior to the development of Mark
Winne Associates, Mark Winne was the co-founder of the Community Food Security Coalition, where he
worked from 2005 to 2012 on federal food and farm policy issues and food policy councils. From 1979 to
2003, he was the executive director of the Hartford (Connecticut) Food System, which developed dozens
of local and statewide food projects including the City of Hartford Advisory Commission on Food Policy
and the State of Connecticut Food Policy Council. Winne’s extensive background in food and agricultural
policy includes his previous honors as a 2001 recipient of the U.S. Department of Agriculture Secretary’s
Plow Honor Award and more recent placement as a Visiting Scholar at John Hopkins University School of
Public Health for the 2010/11 academic year. Mark Winne is the author of two books—Closing the Food
Gap: Resetting the Table in the Land of Plenty and Food Rebels, Guerilla Gardeners, and Smart-Cookin’ Mamas—both
published by Beacon Press.




                                                                                                 Introduction | 4
SECTION I: GENERAL LEGAL SETTING
The main task of a state food policy council is to identify and facilitate passage of state laws, regulations, and policies that
positively impact the state’s food system. This requires an understanding of whether these laws and policies can be enacted at the
federal, state, or local level. The interplay between federal, state, and local laws can be complicated. This section lays out some of
the basic information relevant to the structure and legal authority of state governments, the types of food law and policy regulations
that can be implemented at the state level, and some strategic planning and execution advice for improving a state food system.

OVERVIEW         One of the main activities undertaken by state food policy councils is legislative and
administrative advocacy. Before a council engages in advocacy, there are a few things that the council should
know in order to structure and guide its efforts. The council should also be aware of possible issues it may
face when trying to improve the state food system. This section gives an overview of the breakdown
between federal, state, local, and tribal authority; the different paths that ideas travel before becoming
laws; and important groundwork a council should do before beginning its advocacy efforts.
1. Federalism and the Interplay of Federal, State, Local, & Tribal Law This section
provides a general overview of the way that the U.S. system of federalism impacts the breakdown of
authority between federal, state, local, and tribal governments.
2. Understanding Legislation & Regulation In order to achieve their goals, it is important
for councils to understand the difference between legislation and regulation, and how the two are formed.
3. Getting to Know Your State Government State food policy councils should learn how
their state governments are structured in order to know what government entities would be useful.
4. State Food System Assessment Conducting a state food system assessment can serve as an
important starting point for food policy councils. This section provides some resources and information
about food system assessments.

FEDERALISM AND THE INTERPLAY BETWEEN FEDERAL, STATE, LOCAL, &
TRIBAL LAW The division of power and responsibility between state and federal governments can be
difficult to fully understand, but it is important for state food policy councils to gain a broad knowledge of
the areas in which state government can operate in order to know what policy changes they can achieve.
This section describes in more detail the delicate balance between state and federal authority.

State & Federal Government The United States is governed using a system of federalism.
Federalism means that both the federal and state governments have their own spheres of responsibility and
authority. The federal government has a variety of powers, but its authority is limited by the U.S.
Constitution.1 For example, the federal government has the authority to regulate interstate commerce, 2 to
tax,3 to enter into treaties,4 and to declare war.5 Anything outside the federal government’s constitutionally
limited authority is left for the states to govern exclusively.6 In areas where the federal government has
authority to govern, those federal laws will, subject to some exceptions, generally override state laws.7
Both the federal government and state governments have authority over food policy issues.

1
  See U.S. CONST. art. 1.
2
  U.S. CONST. art. I, § 8, cl. 3.
3
  U.S. CONST. art. I, §8, cl. 1.
4
  U.S. CONST. art. I, § 10, cl. 1.
5
  U.S. CONST. art I, § 8, cl. 11.
6
  U.S. Const. amend. X.
7
  A discussion of preemption issues is included in this section.


                                                                                                           General Legal Setting | 5
Federal Authority The three most important powers that the federal government has in relation to food
policy issues are the authority to regulate interstate commerce, the taxing power, and the ability to attach
conditions to federal funds given to states.

First, the Interstate Commerce Clause provides one of the most important sources of authority to the
federal government, granting Congress the power to regulate interstate commerce, or commerce ―among
the several states.‖8 This is especially important for food policy because it means that any food item that
enters, or may possibly enter, interstate commerce is subject to regulation by the federal government. By
contrast, foods that are produced and sold within a state are generally subject only to state regulation.
Furthermore, the federal government’s ability to regulate interstate commerce has given rise to what is
called the Dormant Commerce Clause. The Dormant Commerce Clause prohibits states from passing
legislation that will adversely impact interstate commerce in the absence of federal law granting permission
for them to do so.9 This means that states are not allowed to pass laws that discriminate against products
from other states, for example by taxing out-of-state products more than similar in-state products, unless
Congress has passed legislation sanctioning it.10 The idea behind the Dormant Commerce Clause is that
states may not give preferential treatment to businesses within their borders because producers in other
states have the same right to access a state’s market that a local producer does. There are a few exceptions
to this rule, such as when it is the government itself is making the purchases, in which case, it may prefer in-
state products (for more information on this, see Section VI: Farm to Institution).

Second, Congress has the power to raise money through taxing, which it can generally use to achieve
regulatory goals that are otherwise outside the scope of its other enumerated powers. Where Congress has
a regulatory goal, such as requiring all Americans to buy health insurance, it can achieve that goal by
exacting a tax from all those who do not comply.11

Third, related to its power to tax, Congress has the power to spend the money it brings in, and when it
provides federal funds to states it often attaches conditions to those funds. This funding with conditions is a
major ―carrot‖ that drives state policy, as states want to comply with the federal government’s wishes in
order to receive federal funding. Congress thus has a broad power at its disposal to achieve its regulatory
goals by tying them to funding decisions.

Federal Preemption of State Laws As mentioned above, anything outside the federal government’s
constitutionally limited authority is left for the states to govern exclusively.12 States have primary authority
to pass laws regarding the health, safety, and morality of its citizens (referred to as ―police power‖).13 The
federal government has the power to preempt state and local governments from imposing laws and
regulations in areas in which the federal government has constitutionally-given authority to act. Food policy
councils must keep this preemption authority in mind when proposing state legislation.




8
  U.S. CONST. art. 1, § 8, cl. 3.
9
  U.S. Haulers Ass’n, Inc. v. Oneida-Herkimer Solid Waste Mgmt. Auth., 550 U.S. 330, 338 (2007).
10
   Am. Trucking Ass’n, Inc. v. Mich. Public Serv. Comm’n, 545 U.S. 429, 433 (2005).
11
   See, e.g., Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012). See also United States v. Kahriger 345 U.S. 22
(1953).
12
   U.S. Const. amend. X.
13
   Id.


                                                                                                                       General Legal Setting | 6
Federal preemption can either be express or implied. Express preemption occurs when a federal statute
explicitly states the intention of Congress to preempt state law. For example, states are preempted by the
Nutrition Education and Labeling Act (NLEA) from imposing labeling requirements for processed and
packaged foods that are not identical to the labeling requirements in the Federal Food, Drug and Cosmetic
Act.14 The NLEA gives specific examples of the actions that are preempted and those that are not.15 Those
that are listed as preempted in the Act are thus expressly preempted. Food policy councils need to ensure
that any proposed state legislation is not the type of law (or in an area of law) that is expressly preempted by
a federal statute. Implied preemption, on the other hand, occurs when the language and content of the law
suggests Congress intended to preempt state law, but Congress has not clearly said in the law what it
intends to preempt.16 This type of preemption can be more difficult to identify and avoid, but it is
important for food policy councils to know that it exists.

As an example of the interplay between state and federal government, in 2008, California passed a menu
labeling law that required chain restaurants of a certain size to include calorie and other nutritional
information on their menus and display boards.17 At that time, this was an area of law in which the NLEA
did not preempt states from taking this kind of action, and therefore, California was able to impose these
additional requirements. A few years later, in the Patient Protection and Affordable Care Act of 2010,
Congress included provisions to require the same kind of menu labeling of chain restaurants on a national
scale.18 Now that Congress has passed a law on this issue, states are preempted from regulating menu
labeling at the chain restaurants that fall under the federal law, though they can still require menu labeling at
other types of restaurants within the state. California’s lead on menu labeling is a good example of how
policy change on a state level (in an area not preempted by Congress) can lead to national policy change, but
it also shows a place where state rules can be preempted by federal ones.

It is important to remember that states have broad regulatory powers and that the federal government is
limited by those powers enumerated in the Constitution. Federal preemption can thus only occur within
the field of those limited federal powers, leaving states with ample regulatory freedom and flexibility.

State & Local Government The interplay between state and local governments works slightly
differently. Local governments do not have any express authority under the U.S. Constitution. Instead,
local governments have only the power given to them by their state under that state’s constitution and
statutes. All states have the same amount of constitutionally-derived power and authority, but determine on
their own how to apportion this power between the state and local governments. For more information on
the powers available to local governments and the interplay between state and local government, see Part I
of this two-part series: Good Laws, Good Food: Putting Local Food Policy to Work for Our Communities.



14
   21 U.S.C. § 343-1(a) (2012). See also Turek v. General Mills, Inc., 662 F.3d 423, 426–27 (7th Cir. 2011).
15
   21 U.S.C. §343-1 (2012).
16
   Cipollone v. Liggett Group, Inc., 505 U.S. 504, 532 (1992) (Blackmun, J., concurring in part and dissenting in part). Implied preemption
can be further broken down into two types: conflict preemption and field preemption. Conflict preemption occurs whenever it is impossible to
follow both the federal and the state law or regulation, in which case the federal law preempts. Geier v. American Honda Motor Co., Inc, 529
U.S. 861, 899 (2000). Field preemption occurs when the federal regulatory scheme is so pervasive that it can be said to completely occupy the
field of regulation in that area, even absent a direct conflict between the federal and state law. Silkwood v. Kerr-McGee Corp., 464 U.S. 238,
248 (1984).
17
   Sen. B. 1420, 2008 Leg. Sess. (Cal. 2008).
18
   Patient Protection and Affordable Care Act of 2010, Pub. L. No. 111-148, § 4205, 124 Stat. 119 (2010) (codified at 21 U.S.C. §
343(q)(5)(H) (2012)).


                                                                                                                  General Legal Setting | 7
               TABLE I-1: ROLE OF VARIOUS LEVELS OF GOVERNMENT IN FOOD POLICY
     ISSUE                FEDERAL LEVEL                             STATE LEVEL                               LOCAL LEVEL
     FOOD SAFETY          The Food and Drug                         State governments implement              Local public health departments
                          Administration (FDA) creates              laws and regulations affecting           are often tasked with enforcing
                          the FDA Food Code, which                  restaurants and retail stores,           state food safety requirements.
                          recommends (but does not                  based on federal guidance. Most          Some local governments also
                          require) food safety provisions           states adopt a modified version          have their own set of food safety
                          for retail stores and restaurants.        of the FDA Food Code. States can         ordinances applicable to local
                          It is not mandatory but has been          create their own meat and                restaurants or grocery stores.
                          adopted in some form by most              poultry processing inspection
                          states.19 The federal government          regime, but it must be at least as
                          oversees food safety for                  stringent as the federal regime.21
                          products moving in interstate
                          commerce, as well as regulating
                          poultry and meat processing,
                          monitoring general food safety,
                          and exercising its food recall
                          authority.20
     LAND USE AND         Zoning and land use law are               While it is within the state’s           Most states delegate zoning and
     ZONING               primarily state and local issues.         power to regulate zoning, most           land use powers to local
                          However, federal law                      states delegate this power to            governments. As these are
                          (particularly individual rights           local governments. Nonetheless,          predominantly local issues,
                          protected by the Constitution)            statewide planning can mandate           zoning and land use powers are
                          can restrain state and local              or encourage certain local               important tools for local food
                          government land use regulations           zoning and land use practices.22         policy councils to understand
                          in some instances.                                                                 and utilize.
     GEOGRAPHIC           Food purchased using federal              State agencies or institutions           Local agencies, schools, and
     PREFERENCE IN        dollars, such as meals under the          using state funds must follow            institutions may prefer local
                          National School Lunch Program             state procurement guidelines.            food when spending federal
     FOOD                 (NSLP), must follow federal               An increasing number of states           funds, as authorized under
     PROCUREMENT          procurement guidelines. Federal           have tailored their procurement          federal law.25 When using state
                          law now authorizes schools                regulations to encourage local           funds or local funds, they may
                          using NSLP dollars to prefer              purchasing by state                      give preference to local food if
                          food grown locally.23 Programs            agencies/institutions.24 When            authorized under the relevant
                          using state or local dollars do           using federal money, federal             state or local authority.
                          not need to follow federal rules.         rules still apply.




19
   Real Progress in Food Code Adoptions, FDA (July 1, 2011),
http://www.fda.gov/Food/FoodSafety/RetailFoodProtection/FederalStateCooperativePrograms/ucm108156.htm.
20
   Three government agencies share responsibility for federal food safety. The USDA's Food Safety and Inspection Service (FSIS) inspects meat
and poultry processing and reviews product labels. See Poultry and Poultry Products Inspection Act, 21 U.S.C. §§ 451–72 (2012); Meat
Inspection Act 21 U.S.C. §§ 601–95 (2012). The FDA monitors the safety and labeling of most non-meat and processed foods, and licenses
food-use chemicals other than pesticides. See Federal Food, Drug and Cosmetic Act, 21 U.S.C. §§ 301–99 (2012). The EPA registers pesticides
and sets pesticide tolerances that are enforced by the FDA or the FSIS. See 7 U.S.C. § 136(a)–(y) (2012); 21 U.S.C. § 342(a)(2)(B) (2012).
21
   See Poultry and Poultry Products Inspection Act, 21 U.S.C. §§ 451–72 (2012); Meat Inspection Act 21 U.S.C. §§ 601–95 (2012).
22
   See, e.g., Goals, Or. Dep’t of Land Conservation & Dev., OREGON.GOV, http://www.oregon.gov/LCD/goals.shtml (last visited Sept. 26, 2012);
see generally Jeffrey D. Kline, Forest and Farmland Conservation Effects of Oregon’s Land-Use Planning Program, 35 ENVTL. MGMT. 368 (2005).
23
   Geographic Preference Option for the Procurement of Unprocessed Agricultural Products in Child Nutrition Programs, 7 C.F.R. §§ 210,
215, 220, 225, 226 (2011).
24
   As of 2010 at least twelve states had passed legislation allowing purchasing preferences for in-state agricultural products. State Farm to School
Legislation, NAT’L FARM TO SCH. NETWORK (Nov. 2, 2010), www.farmtoschool.org/files/publications_177.pdf.
25
   Geographic Preference Option for the Procurement of Unprocessed Agricultural Products in Child Nutrition Programs, 7 C.F.R. §§ 210,
215, 220, 225, 226 (2012).


                                                                                                                       General Legal Setting | 8
     FOOD                The federal government                 States are preempted from              If allowed under state law, local
     LABELING            regulates ingredient and               enacting labeling laws for             governments can pass some food
                         nutrition labeling for all             packaged foods or certain chain        labeling rules for foods not
                         packaged foods that travel in          restaurants/vending machines,          covered under federal law. For
                         interstate commerce (e.g., go          as these are regulated by federal      example, local governments can
                         across state lines).26 However,        law. However, states may:              require labeling for non-chain
                         state and local governments can        require labeling for non-              restaurants.
                         choose to require menu labeling        packaged foods, require labeling
                         or other labeling for items not        for non-chain restaurants, pass
                         included in the federal laws.          labeling rules for foods that do
                         Federal law also regulates             not cross state lines, and require
                         nutrition labeling of certain          other label information (e.g.
                         chain retail food establishments       Alaska requires the labeling of
                         and chain vending machine              farm-raised salmon products).28
                         operators.27
     FOOD                Most food assistance programs,         State governments are                  Local governments generally do
     ASSISTANCE          like SNAP, WIC, etc., are              responsible for administering          not play a role in administering
                         authorized and funded at the           food assistance programs in            food assistance programs, but
     BENEFITS            federal level, though states may       terms of authorizing participants      they can encourage their
                         contribute funds for program           and, in some cases, vendors.           residents to participate in the
                         administration or to increase the      States sometimes contribute            programs, which are often
                         amount of benefits available to        additional funds to the                underutilized, or provide
                         participants.                          programs.                              incentives to those who purchase
                                                                                                       healthy options with their
                                                                                                       benefits.

State & Tribal Government The relationship between Native American tribal governments and
state and federal governments is a bit more complicated. In the U.S., Native American tribes have ―tribal
sovereignty,‖ a term that embodies ―the right of federally recognized tribes to govern themselves and the
existence of a government-to-government relationship with the United States.‖29 This means that a Native
American tribe has ―the right to form its own government, adjudicate legal cases within its borders, levy
taxes within its borders, establish its membership, and decide its own future fate.‖30 As a result, state law
can only preempt tribal law when Congress has given that state the authority to do so. Instead of focusing
on whether a state government can impose a food policy law on tribal governments, state food policy
councils should work to collaborate with tribal governments within their state on food policy matters.

State Authority In order to change food policy at the state level, a food policy council must
understand which level of government has the authority to govern the policy it seeks to change (e.g.
whether the law or regulation was or can be implemented at the local, state, tribal, or federal level).
   If it is a local law or regulation, it may be best left to local governments and the work of local-
     level food policy councils. However, a state food policy council can evaluate why the locality has the
     authority to govern in that area and whether there may be reasons to have uniform state-wide
     regulation. If that is the case, the state food policy council will want to explore what steps are
     required for a state law to preempt local laws.


26
   Nutrition Labeling and Education Act of 1990, 21 U.S.C. § 343-1 (2012).
27
   21 U.S.C. § 343(q)(5)(H)(ii) (2012).
28
   Alaska Food, Drug, and Cosmetic Act, ALASKA STAT. § 17.20.040(a)(12) (2012).
29
   Answers to Frequently Asked Questions about Native Peoples, NATIVE AMERICAN RIGHTS FUND, http://www.narf.org/pubs/misc/faqs.html (last
visited Sept. 26, 2012).
30
   Id.


                                                                                                                 General Legal Setting | 9
      If it is a state law or regulation, the state has the authority to change the law or regulation.
      If it is a federal law or regulation, the council should identify whether the state government has
       the power to create legislation changing the federal law in some way. Sometimes federal laws and
       regulations are established as baselines of conduct, and state governments can impose a rule that is
       stricter than the federal rule. Even if the regulation at issue was promulgated at the federal level, state
       food policy councils should remember that they can get together with other state food policy councils
       and stakeholders nearby or throughout the country and advocate for change at the federal level.

In summary, each level of government has a specific sphere of authority, and state food policy councils must
identify the level or levels of government most
relevant to each particular issue in order decide how
to proceed. Understanding which level of                  BALLOT PROPOSITIONS FOR FOOD AND FARMS
government has jurisdiction over an issue will help a California’s proposition system, in which members
state food policy council assess the amount of time of the public can propose significant changes to state
and resources it should invest in the issue as well as   policy which are then subject to passage by a
identify the level of government to which it should popular vote, has been making headlines recently
direct its energies.                                     with a couple of major ballot propositions dealing
                                                              with food and agriculture.
UNDERSTANDING LEGISLATION &                                   In 2008, Californians passed Prop. 2, which
                                                              ―requires that calves raised for veal, egg-laying hens
REGULATION In addition to understanding the                   and pregnant pigs be confined only in ways that
different levels of government at which a law or              allow these animals to lie down, stand up, fully
regulation can be promulgated or preempted, it is             extend their limbs and turn around freely.‖
important to understand the difference between
                                                              In 2012, Californians defeated a proposition to
legislation and regulation. Legislation and regulations       require labeling of genetically modified organisms
are formed and enforced in different ways.                    (GMOs) in food. Prop. 37 would have required
Legislation refers to the laws that are passed by             that foods manufactured using genetic engineering
governing legislative bodies, like the U.S. Congress          be labeled, and also would have set rules about
or state legislatures. Legislation can directly create        when the term ―natural‖ could be used.
laws that people must follow, but it often simply             Sources: Standards for Confining Animals, Initiative Statute,
authorizes an administrative agency to write                  CAL. SEC. OF STATE,
regulations to carry out the purpose of that                  http://voterguide.sos.ca.gov/past/2008/general/title-
                                                              sum/prop2-title-sum.htm (last visited Oct. 23, 2012). Susan
legislation. Regulation refers to the rules and               Schneider, Lauren Handel on Prop 37, THE LL.M. PROGRAM IN
procedures that agencies use to achieve the goals             AGRICULTURAL AND FOOD LAW BLOG (Sept. 20, 2012,
promulgated by the legislation.                               12:28pm), http://www.agfoodllm.com/2012/09/lauren-
                                                              handel-on-prop-37.html.

In this section, we will describe the general legislative
process of how a bill is introduced and the steps
involved in the bill becoming law. We will focus primarily on the process used for federal legislation, which
most states use as a framework for their own legislative processes. You should make sure to understand
your state’s legislative process. For example, in California, citizens can propose legislation through the
initiative process, which provides an additional mechanism for creating policy change, rather than having to
rely on elected representatives to introduce legislation.31 Further, it is important to know your state’s
legislative calendar. In many states, the legislature only meets a few months each year. In some states, the
legislature only meets a few months every other year.

31
     CAL. CONST. art. 2, § 8.


                                                                                                  General Legal Setting | 10
Legislation The legislative process consists of six main steps: (1) formulation of the bill, (2)
introduction of the bill, (3) development of the bill by the appropriate committee(s), (4) debate on the
legislature floor followed by a vote, (5) referral to the other legislative chamber, sometimes followed by a
conference, and (6) action by the President or state governor.

1) Formulation of the Bill A lot of important work on legislation happens before it ever gets
introduced. Before bills are proposed, representatives often solicit input from citizens and interest groups
on what issues they should attempt to address through the legislative process. Often, representatives will
become the point member or ―sponsoring member‖ of bills and will be responsible for researching the
proposed bill, gauging support among fellow legislators, and developing the ideas that will form the
substance of the bill. State food policy councils do not have to wait for a legislator to solicit input from the
public, instead they can seek out legislators in their state to introduce a particular bill, or encourage those
legislators to craft legislation that furthers the food policy council’s advocacy goals.

2) Introduction of the Bill Any member of Congress (Senator or Representative) can introduce
legislation while Congress is in session. As mentioned above, in some states, legislation can even be
introduced by members of the public.32 Part of the formulation and introduction of legislation involves
choosing to which committee the bill will be directed (usually decided by the leadership of the legislature),
though in some cases a bill is referred to multiple committees. Committees cover topical areas such as
agriculture, public health, education, and appropriations. The exact names and make up of committees vary
from state to state and sometimes between different chambers of the legislature within a state.

3) Committee Action After a bill is proposed, the bill is then assigned to the committee (or committees)
with primary jurisdiction over the area of legislation. The bill will be developed in the chamber of origin
(either Senate or House of Representatives), but sometimes identical or similar bills are presented
simultaneously in both chambers. Sometimes a bill is referred to multiple committees and sometimes a bill
is referred to subcommittees of those committees. While ―in committee,‖ bills are often marked up with
changes discussed and approved by drafting/editing members of the committee, and then the bills are put to
a committee vote. If the bill passes the vote, it will then be presented to the entire body of that chamber for
debate. The great majority of bills never make it out of committee. However, if the bill is presented to the
full chamber body, the committee generates a report to accompany the bill describing the intent of
legislation, the legislative history such as hearings in the committee, the impact on existing laws and
programs, and the position of the majority of members of the committee. It would be particularly
advantageous for food policy councils to identify the food policy-related committees, when these
committees generally meet, and what the political dynamic is like among committee members and between
the committee and the larger legislative chamber.

4) Floor Debates & Votes If a bill survives the committee, it goes to a vote by the full legislative body in
the chamber in which it originated. Each legislative body has its own, often very distinct, procedures
governing proposals, debates, and amendments. The most effective way for a food policy council to

32
   For example, under California’s initiative system, if members of the public write a proposed law, obtain signatures from a certain percentage
of the registered voters in the state, and comply with a few other procedural requirements, the initiative measure will submitted to voters in the
statewide election. If the measure passes, it becomes state law. See Statewide Initiative Guide, SEC’Y OF ST. DEBRA BOWEN,
http://www.sos.ca.gov/elections/ballot-measures/initiative-guide.htm (last visited Sept. 26, 2012). For a list of the states that have the
initiative and referendum process, see INITIATIVE & REFERENDUM INSTITUTE, http://www.iandrinstitute.org/statewide_i%26r.htm (last visited
Oct. 15, 2012).


                                                                                                                    General Legal Setting | 11
advocate during this stage is to keep track of the legislation in which the council has a strong interest and to
keep an open dialogue with its sponsoring member(s). During this time, council members should contact
legislators to inform them of their views on the issue and to provide input regarding changes that may be
beneficial to the council’s overall food policy goals. This is also a good time for food policy councils to do
education and outreach around the state to get people to call their legislators to express support for the
pending bill. Additionally, it is important for food policy councils to watch for bills that might negatively
impact their food policy efforts; in those situations, food policy councils should contact their legislators to
show their disapproval of the bill. Contacting legislators during this time can be effective since many will be
engaged in thinking about the bill and the issues involved.

5) Referral & Conference After either the House or the Senate passes a bill, it is then given to the other
part of the legislative body (either the House or the Senate) where it follows a similar route through
committee and floor debates. If the second chamber makes significant changes to the bill, the two chambers
then meet in what is called a ―conference committee‖ to try and reconcile the differences and then present
the resulting conference committee report on the bill to each chamber. The report, including the bill as
drafted by the conference committee, must be passed by both chambers in order for the bill to be presented
to the President/governor for approval. If the bill is approved in the second chamber without changes, it
can proceed directly to the President/governor without a conference committee.

6) Action by President (or, at the state level, governor) At this point, the final bill is sent to the
President (or governor) for approval or veto. The bill must be signed by the executive to become law. In
some states, the bill will become a law after a certain number of days whether or not the governor formally
gives approval. If the bill is vetoed, the federal Constitution, as well as most state constitutions, allow for
the legislature to override the veto with a large measure of support from the joint chambers (2/3 in the case
of the U.S. Congress), although overriding a veto is rare. If the legislature overrides the veto, the bill
becomes law without the signature of the President/governor.

Regulation As discussed above, legislation can create laws that allow or prohibit certain behaviors
directly. More often, legislation just authorizes an administrative agency to pass rules and regulations to carry
out the legislation’s purpose. An administrative agency is a ―governmental body with the authority to
implement and administer particular legislation.‖33 A good example of an administrative agency at the
federal level is the Food and Drug Administration (FDA), which creates and enforces rules regarding food
and drug safety to carry out, among other legislative acts, the federal Food, Drug and Cosmetic Act.34

To distinguish legislation from regulation, think of Congress as the entity that creates a law’s general outline
and the administrative agency as the entity that fills in the details. Congress understands the broad issues,
and the agencies with their experts are able to craft regulations to accomplish Congress’ goals. This grant of
power consequently gives administrative agencies broad discretion, within some limits set by Congress, to
regulate. Federal agencies are required by the federal Administrative Procedures Act (APA) to follow
certain administrative procedures regarding how they develop, enact, and enforce regulations.35 The Act
requires public notice and comment periods when proposing new regulations and also provides rules on
when and how agency actions are subject to judicial review.36

33
   BLACK’S LAW DICTIONARY (9th ed. 2009).
34
   21 U.S.C. § 341 (2012). The Act delegates powers to the Secretary of the Department of Health and Human Services (21 U.S.C. §§ 341,
321(d) (2012)), which is fulfilled by the FDA as an agency within this department.
35
   Administrative Procedure Act, 5 U.S.C. §§ 500–596 (1946).
36
   Id.


                                                                                                             General Legal Setting | 12
Many states have used this model for their state administrative agencies. It is very important for your food
policy council to understand your state’s unique administrative rules to effectively engage in advocacy with
the state administrative agencies. The regulating process of most administrative agencies can be separated
into three distinct steps: (1) rulemaking, (2) notice and comment, and (3) judicial review.

1. Rulemaking Every agency has certain procedures it must follow when proposing an administrative
rule. Rules are like additional laws in that they set forth various requirements in order to comply with the
law; for example, rules might lay out the steps that must be taken in order to get a permit to sell food from
a mobile food cart, the kinds of restaurants that are covered by menu labeling laws, or the penalties that will
be imposed if a rule is not followed. By understanding the state’s procedures and timelines, state food
policy councils can identify when and how to approach agencies to ask them to make certain rules or
policies, or engage with the process that agencies are conducting as they create new rules or policies.

2. Notice & Comment Most states have a notice and comment period during which the administrative
agency opens a forum to the public and receives comments regarding its proposed rule or rules. These
comments can come from any members of the public, including various stakeholders such as nonprofit
organizations, think tanks, legislators, academics, businesses, affected consumers, and many others.
Submitting comments during this period is a great opportunity for councils to engage in advocacy around
issues of interest to them. Sometimes agencies will also hold public hearings, where stakeholders can
publicly present their support for or concerns about a proposed rule.

Your state food policy council should become familiar with both federal notice and comment procedures, as
well as state procedures, given that the process could be different at each level. Even though state food
policy councils focus on state level law and policy change, they can and should submit comments on federal
rules and regulations that have the potential to impact their food policy goals.

3. Review Once an agency promulgates a rule and enforces that rule against an individual or entity, the
individual or entity can challenge the administrative rule or decision via an appeals process, similar to
appealing a regular court ruling. For example, if the USDA bans a certain additive to commercially sold
beef and then fines a processing plant for including the additive, the processing plant can challenge the rule
after the fine has been levied. This means the adjudication process can also be an indirect way to challenge
the legality of rules that have already been passed. In the preceding example, in the course of challenging
the fine, the processing plant could argue that the rule itself is improper. A regulatory agency’s adjudication
process should not be the first place policy councils should seek to engage in advocacy, and should be
considered as a last-ditch option for changing or challenging rules that might negatively affect the state’s
food system.

Monitoring Legislation & Regulations One very important step a state food policy council
can take is to implement a legislative and regulatory monitoring system—whereby an individual or a committee
from the food policy council monitors legislative and regulatory activity, condenses the complex
information, and reports the findings through a channel that is widely available. Setting up a website or blog
and routinely reporting on the legislative and regulatory developments via email is a good way to engage the
food policy council membership as well as keep tabs on proposed laws and regulations. As legislative and
regulatory developments occur, archiving or labeling them by category will be especially helpful for future




                                                                                        General Legal Setting | 13
advocacy activities (e.g. reviewing the legislative or regulatory history to better inform the council’s
comments on a particular issue).

GETTING TO KNOW YOUR STATE GOVERNMENT The next step in maximizing your food
policy council’s advocacy outcomes is to understand the makeup of your state government. Having a good
sense of the structural and political operation of your state government will enable your council to be more
effective in developing and targeting proposals for improving your state’s food system. Your food policy
council should determine which of the state’s various departments and agencies are relevant to food policy
goals and seek to partner with those entities.

Identify Significant State Agencies, Entities, & Contacts First your council should
identify the appropriate agencies with which it should seek to partner, or to which it should be advocating
for policy change. While specific responsibilities and titles can vary from state to state, there are generally
five state departments that have the most influence on food system outcomes: (1) Department of
Agriculture, (2) Department of Public Health, (3) Department of Education, (4) Department of Human
Services, and (5) Department of Environmental Protection/Quality. Once you have a firm grasp on each
department’s role in establishing or enforcing food-related policies in your state, you should work to create
relationships with people inside those departments. It is important to recognize that your state may have a
similar agency to one of those listed below that is operating under a different name. Your state may also
split up duties of the agencies differently than what is laid out here, but this list can be used as a good
starting point for identifying the types of agencies that are relevant to your work.

1. The Department of Agriculture (DOA), sometimes referred to as the Department of Food and
Agriculture, is the agency most food policy councils first think of when identifying where food policies are
promulgated. Some typical goals of a DOA include ensuring food safety in certain settings, promoting the
state’s agriculture and food products, regulating farmers markets, and promoting environmentally
sustainable agricultural practices. Some states’ DOAs focus entirely on agriculture, while others take a
broader approach to promoting a state’s agricultural economy, including conserving natural resources,
combating deceptive business practices, providing consumer information, supporting rural communities,
and fostering healthy lifestyles, among other aims.37

2. The Department of Public Health (DPH) aims to protect and promote the health of the citizens of
the state. Public health may include well-being, safety, disaster preparedness, preventive healthcare, safe
water, food safety, food monitoring, and a number of other areas. State DPHs may administer certain types
of federal food assistance programs for low income people (particularly through administering the federal
Supplemental Nutrition Program for Women, Infants and Children (WIC)), regulate restaurants’ health
and safety standards, and oversee other food permitting and inspection issues (such as cottage food
operations and mobile vending operations).38



37
   See, e.g., Mission Statement of the California Department of Food and Agriculture, CAL. DEP’T OF FOOD & AGRIC., http://www.cdfa.ca.gov/CDFA-
Mission.html (last visited Sept. 27, 2012); About FDACS, FLA. DEP’T OF AGRIC. & CONSUMER SERV.,
http://www.freshfromflorida.com/about_fdacs.html (last visited Sept. 27, 2012); Agency Info., TEX. DEP’T OF AGRIC.,
http://texasagriculture.gov/Home/AgencyInformation.aspx (last visited Sept.27, 2012).
38
   See, e.g., MISS. ST. DEP’T OF HEALTH, http://msdh.ms.gov/ (last visited Sept. 27, 2012); ST. OF LA. DEP’T OF HEALTH & HOSP.,
http://new.dhh.louisiana.gov/ (last visited Sept. 27, 2012); UTAH DEP’T OF HEALTH, http://health.utah.gov/index.html (last visited Sept. 27,
2012).


                                                                                                                 General Legal Setting | 14
3. The Department of Education (DOE) sets education curriculum standards, supports the state’s
public schools, and helps administer food and nutrition programs for the state’s schools.39 In some states,
such as Florida, the DOE will work with the DOA to administer school meals, through programs like farm
to school.40 The DOE also has authority over the educational curriculum, which means state food policy
councils can advocate to the DOE to make health and nutrition classes a mandatory part of the state
curriculum.

4. The Department of Human Services (DHS) aims to assist a state’s economically disadvantaged
citizens through financial, employment, protective and rehabilitative services.41 This department is usually
in charge of administering the Supplemental Nutrition Assistance Program (SNAP, formerly known as food
stamps) and, in some states, may also oversee other federal food assistance programs, such as the Child and
Adult Care Food Program or the Summer Food Service Program.42 States have differing methods for SNAP
enrollment, which advocates can work with their state DHS to reform. For example, fifteen states currently
do not have any form of online application for SNAP and three states allow residents in only some counties
to apply for SNAP benefits online.43 This is an area for potential reform, as it is one way to help improve
food security for those in the state who are most in need.

5. The Department of Environmental Protection (DEP), which is often known by variations of this
name, can also be relevant to state food law and policy. For example, in Alaska the Department of
Environmental Conservation is the agency that oversees
food safety regulations.44 In Massachusetts and
Connecticut, the state DEPs run composting, organic                FARM TO TABLE CAUCUS
                                         45
recycling, and other food waste programs.                  Texas’ Farm to Table Caucus is the first of
                                                                                  its kind in the country. Caucus members
Assess  your     State’s      Food       Policy                                   hope to consider issues such as reducing
Environment Once you have gained an understanding                                 barriers to tax exemptions for urban farms,
of your state’s specific agencies and actors, it is important to                  allowing on-site processing of wild hog and
                                                                                  deer meat for soup kitchens, increasing, and
assess the political and functional realities of your state.
                                                                                  expanding Texas’ Cottage Food Law.
How well do the state agencies work with one another?
How well does the legislature communicate with the state                          Source: Becca Aaronson, Farm to Table Caucus Advances
                                                                                  Local Food Movement, THE TEXAS TRIBUNE, Sept. 17,
agencies? Who within the state government is passionate                           2012, available at
about food policy issues? Does the state collaborate well                         http://www.texastribune.org/texas-legislature/texas-
with the federal government? Are certain geographical                             legislature/farm-table-caucus-advances-local-food-
                                                                                  movement/preview/.
regions, like big cities or counties, getting a
disproportionate level of benefits or resources directed to

39
   See, e.g., Food and Nutrition Programs, PA. DEP’T OF EDUC.
http://www.portal.state.pa.us/portal/server.pt/community/food___nutrition_services/7483 (last visited Sept. 27, 2012).
40
   See, e.g., Food, Nutrition and Wellness, FLA. DEP’T OF AGRIC. & CONSUMER SERV., http://www.freshfromflorida.com/divisions/fnw/
(redirected from Food and Nutrition Homepage, FLA. DEP’T OF EDUC.) (last visited Sept. 27, 2012).
41
   Human Services, About Us, TENN. DEP’T OF HUMAN SERV., http://www.tn.gov/humanserv/us.html (last visited Sept. 27, 2012).
42
   See, e.g., Programs and Services, TENN. DEP’T OF HUMAN SERV., http://www.tn.gov/humanserv/progserv.html (last visited Sept.27, 2012).
43
   Supplemental Nutrition Assistance Program: To Apply, USDA FOOD & NUTRITION SERV.,
http://www.fns.usda.gov/snap/applicant_recipients/apply.htm (last visited Sept. 27, 2012).
44
   ALASKA DEP’T OF ENVTL. CONSERVATION, DIVISION OF ENVTL. HEALTH, FOOD SAFETY & SANITATION PROGRAM,
http://www.dec.alaska.gov/eh/fss/index.htm (last visited Oct. 15, 2012); ALASKA FOOD CODE, DEP’T OF ENVTL. CONSERVATION (July
2012), available at http://dec.alaska.gov/commish/regulations/pdfs/18%20AAC%2031.pdf.
45
   Composting and Organics, MASS. DEP’T OF ENVTL. PROT., http://www.mass.gov/dep/recycle/reduce/composti.htm (last visited Sept. 27,
2012); Composting and Organics Recycling, CONN. DEP’T OF ENERGY & ENVTL. PROT.,
http://www.ct.gov/dep/cwp/view.asp?a=2718&q=325344&depNav_GID=1645 (last visited Sept. 27, 2012).


                                                                                                              General Legal Setting | 15
them? Conversely, are too many resources going to areas with relatively little agricultural production?
These investigations should help the council in both learning about the intricacies and backdoor ways their
food system is regulated, as well as simultaneously pointing out some potential areas to focus the council’s
advocacy efforts.

One important question for councils to consider is: how important do the state agencies and the state
legislature consider food system issues to be? For example, although farms can be a significant or even the
most significant source of pollution in a state, the state environmental protection agency—because it
regulates more than just farms—may place its priorities somewhere else. Similarly, state public health
departments may administer many types of programs, but may put a big emphasis on infectious disease
rather than on nutrition programs. Additionally, the legislature may be preoccupied with addressing other
topics during the legislative session, and may not emphasize food issues as much as the council would like.

You may find that legislators are taking innovative
steps towards addressing food policy concerns. In                              LOCAL FOOD, FARMS, AND JOBS ACT
Texas, for example, Representative Eddie Rodriguez
                                                                        Illinois passed broad-ranging legislation that
founded the Farm to Table Caucus, which is ―the                         incorporated many food policy goals. The Local
nation’s first bipartisan legislative caucus focused on                 Food, Farms, and Jobs Act created the Illinois Local
advancing the local production of healthy food.‖46                      Food, Farms, and Jobs Council, whose purpose is
Rep. Rodriguez hopes the caucus will be able to                         ―to facilitate the growth of an Illinois-based local
address various food issues, such as obesity, increasing                farm and food product economy that revitalizes
the number of healthy food retail outlets in poor                       rural and urban communities, promotes healthy
areas, and evaluating regulations that may be                           eating with access to fresh foods, creates jobs,
impeding local food production.47                                       ensures a readily available supply of safe food in an
                                                                        emergency event, and supports economic growth
Food policy councils should identify those individuals                  through making local farm or food products
                                                                        available to all Illinois citizens.‖ The Council is
within the state agencies and legislature who are
                                                                        tasked with researching and fostering numerous
sympathetic to food policy issues. Having a contact                     food policy goals in order to fully implement the
person within an agency or the legislature may help                     objectives of the Act.
move the food policy council’s agenda forward. It
                                                              Source: Illinois General Assembly, 30 I.L.C.S. 595, Local
may also be helpful to reach out to those agency Food, Farms, and Jobs Act (2009), available at
officials and legislators who are not as concerned            http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=3137&
about or responsive to food system issues. Perhaps ChapterID=7.
their lack of concern is due to an absence of education
on the topic. Set up a meeting to introduce the
council and its work, or invite the official or legislator to be an integral part of the council’s reform efforts.
After all, food policy is a growing field and it is important for food policy councils to educate and inspire the
community around them.

STATE FOOD SYSTEM ASSESSMENT                   As a first step in the process of identifying potential state
food policy changes, food policy councils can work with state government and state agencies to conduct a
state food system assessment (FSA). An FSA is a tool for analyzing the elements of the food supply chain,
which includes food production, processing, distribution, consumption, waste management, and all

46
   Becca Aaronson, Farm to Table Caucus Advances Local Food Movement, THE TEXAS TRIBUNE, Sept. 17, 2012, available at
http://www.texastribune.org/texas-legislature/texas-legislature/farm-table-caucus-advances-local-food-movement/preview/.
47
   Id.


                                                                                                          General Legal Setting | 16
associated regulatory institutions and activities. The data collected through an FSA can provide a state food
policy council with the information it needs to identify specific gaps or weaknesses in the current food
system, make informed decisions for developing successful food system programs, strengthen state-wide
community networks, increase awareness and understanding of food-related issues, promote health, and
preserve state wealth through the economic activity of the state food system.

Though FSAs can serve as a great way to get organized and identify targeted needs for the state food system,
they can require a significant amount of time and effort to undertake. Partnerships with local governments
and agencies can provide support for state food policy councils as they undertake an FSA. There are also a
number of resources available to help food policy councils get started in performing an FSA, such as the
Community Food Security Assessment Toolkit, published by the Economic Research Service of the
USDA.48 Another resource is Ken Meter, president of Crossroads Resource Center (CRC), a non-profit
organization that works with communities and their allies to foster democracy and local self-
determination.49 Meter is one of the most experienced food system analysts in the United States, and
specializes in devising new tools that states and communities can use to assess their food system and create a
more sustainable future.50

CONCLUSION The laws and regulations surrounding food and agriculture can be complex, and the
division of authority between states and the federal government can be confusing. Although the federal
government exercises its authority over the food system in a variety of ways, states have ample
opportunities to experiment with creative solutions to food system problems. Having a basic understanding
of how food laws and regulations are created and modified will help state food policy councils in achieving
their food policy goals.




48
   BARBARA COHEN, COMMUNITY FOOD SECURITY ASSESSMENT TOOLKIT (U.S. DEP’T OF AGRIC., ECON. RESEARCH SERV., July 2002), available at
http://www.ers.usda.gov/media/327699/efan02013_1_.pdf; see also KAMESHWARI POTHUKUCHI ET AL., WHAT’S COOKING IN YOUR FOOD
SYSTEM? A GUIDE TO COMMUNITY FOOD ASSESSMENT (CMTY. FOOD SEC. COALITION, 2002), available at
http://foodsecurity.org/pub/whats_cooking.pdf.
49
   See About Crossroads Resource Center, CROSSROADS RESEARCH CTR. (2009), http://www.crcworks.org/?submit=about (last visited Oct. 15,
2012).
50
   Id.


                                                                                                            General Legal Setting | 17
SECTION II: FOOD SYSTEM INFRASTRUCTURE
A food system’s infrastructure encompasses the entire food supply chain: production, processing, distribution, retail sales, marketing,
and food waste management. Without reliable facilities and services, food markets within a state cannot reach their full potential.
Food policy councils should promote policies that encourage states to facilitate local business development at each level of the supply
chain, in order to bolster the state’s food system infrastructure.

OVERVIEW          This section identifies specific policy strategies for improving your state’s food system
infrastructure. Food system infrastructure broadly refers to the entities that shape the process along the
continuum from seed to food to consumption. Think of food system infrastructure as the backbone behind
all aspects of food system—from growing and cultivation to consumption and safety, as well as everything
in between. This section offers policy suggestions for improving the efficiency of this infrastructure and
discusses ways to alter the infrastructure to accomplish your council’s food policy goals. The section is
organized around different functions of the food system, namely: production, processing, distribution,
retail, consumption, and waste.
1. Production Production includes any infrastructure that helps with planting and growing of healthy
foods. This section describes the resources provided by the state that help encourage farmers to grow
healthy foods, including economic support, tax incentives, loan programs, and farmer training programs.
2. Processing This step includes activities such as washing, packaging, chopping, drying, freezing, or
otherwise preparing meat and poultry, fruits and vegetables, and cottage foods for sale and consumption.
3. Aggregation & Distribution Creating a centralized system for distribution of agricultural
products (e.g. in food hubs) is an important part of the food infrastructure system and a way food policy
councils can aid the growth and development of local food industries.
4. Retail This subsection introduces the entities that sell or serve food to consumers, such as grocery
stores, restaurants, farmers markets, and community supported agriculture (CSAs).
5. Food Waste This subsection explores the strategies that reduce waste by integrating food waste
management into the food system through composting or recycling programs.

PRODUCTION Food policies and initiatives can have a tremendous effect on the amount, type, and
method of food production utilized in a particular state. It is important to give financial support to build up
the infrastructure for agricultural production (namely for fruits and vegetables) because financial support
makes the risky business of agriculture more feasible. Most of the financial support provided by the federal
government currently goes to production of crops like corn, soy, and cotton, which is why the United
States produces so much of those crops. Advocating for policies that increase funding for the crops we
actually eat will help those farmers grow their businesses and will increase the amount of those crops
available for consumers. This section will explore a number of ways food policy councils can support the
infrastructure for the production of healthy foods.

Economic Support for Healthy Crop Production The federal government provides various
levels of support to agriculture and food production through the Farm Bill, which is reviewed and updated
every five to seven years. Economic supports in the form of subsidies primarily go to commodity crops, like
corn, wheat, cotton, rice, and soybeans.1 In 2011, the federal government paid out nearly $5 billion in

1
 EWG Farm Subsidy Database: The United States Summary Information, ENVTL. WORKING GRP.,
http://farm.ewg.org/region?fips=00000&regname=UnitedStatesFarmSubsidySummary (last visited Sept. 28, 2012).


                                                                                                     Food System Infrastructure | 18
                                                                    subsidies to commodity crops in direct and
         FIGURE II-1: FOOD SUPPLY CHAIN
                                                                    countercyclical payments (which does not include other
             EXAMPLES OF EACH LEVEL
                                                                    supports, such as conservation, disaster, and crop
                                                                     insurance subsidies).2 Specialty crops, defined as ―fruits
              Agricultural Production                                and vegetables, tree nuts, dried fruits and horticulture
    Community Gardens
                                Farmer Training                      and nursery crops, including floriculture‖3—receive
                                   Programs                          some federal funding as well, albeit much less than
                                                                     commodity crops. These crops received a total of $55
                           Processing                                million (in 2011 and again in 2012).4
    Mobile slaughter units            Shared-use kitchens            Farm Bill funds for specialty crops generally come
                                                                     through a program called the Specialty Crop Block
                                                                     Grant Program.5 This program is funded by the federal
                Aggregation and Distribution
                                                                     government and administered by state governments. In
    Small food distributors           Regional food hubs             2012, the federal government awarded $55 million in
                                                                     grants to the states.6 The amount awarded to each state
                                                                     and the types of funded projects varied greatly. The
                          Retail sales                               grants to states ranged from $95,000 to $18 million,
                                                                     with most grants falling in the $200,000-300,000
       Farmers markets                Small grocery stores
                                                                     range.7 These block grants to the state are then
                                                                     allocated by the state to various specific projects, which
                   Food waste management
                                                                     are chosen through application processes managed by
                                                                     each state.
     Gleaning initiatives           Composting food waste
                                                     In most states, the state agency in charge of
administering the Specialty Crop Block Grant Program solicits applications from organizations, businesses,
and entities within the state, and then compiles the strongest of those together into a general application to
the federal government. The federal government allocates funding for each state in this way:
   (1) states whose applications are approved will receive at least $100,000 or 1/3 of 1% of the total
      amount of funding available that fiscal year, whichever is higher; and

2
  The total amount of subsidies paid out in 2011 for all four kinds of subsidies (conservation, disaster, commodity, and crop insurance) totaled
around $15 billion. EWG Farm Subsidy Database: Farm Subsidy Payments by Category, ENVTL WORKING GRP.,
http://farm.ewg.org/regionsummary.php?fips=00000&statename=theUnitedStates (last visited Oct. 17, 2012).
3
  Specialty Crop Block Grant Program—Farm Bill, U.S. DEP’T OF AGRIC., AGRIC. MKTG. SERV., http://www.ams.usda.gov/AMSv1.0/ (go to
homepage, click on Grant Programs on Browse by Subject toolbar) (last visited Sept. 26, 2012).
4
  Definition of Specialty Crops, U.S. DEP’T OF AGRIC., AGRIC. MKTG. SERV., http://www.ams.usda.gov/AMSv1.0/scbgpdefinitions (last visited
Sept. 26, 2012). 2011 Specialty Crop Block Grants Announced, NAT’L SUSTAINABLE AGRIC. COALITION,
http://sustainableagriculture.net/blog/2011-scbg/ (last visited Oct. 17, 2012); Press Release, California Agriculture Leads the Nation in
Funding for Specialty Crops (Oct. 1, 2012), available at http://www.cdfa.ca.gov/egov/Press_Releases/Press_Release.asp?PRnum=12-035.
5
  Specialty Crop Block Grant Program—Farm Bill, U.S. DEP’T OF AGRIC., AGRIC. MKTG. SERV., http://www.ams.usda.gov/AMSv1.0/ (go to
homepage, click on Grant Programs on Browse by Subject toolbar) (last visited Sept. 26, 2012).
6
  News Release, Agriculture Secretary Vilsack Announces Investments in Specialty Crops to Help Strengthen New Markets, Provide Additional
Economic Opportunity for Farmers and Ranchers (Oct. 1, 2012), available at
http://usda.gov/wps/portal/usda/usdahome?contentid=2012/10/0315.xml&contentidonly=true; Fiscal Year 2012 Description of Funded
Projects, U.S. DEP’T OF AGRIC., AGRIC. MKTG. SERV., http://www.ams.usda.gov/AMSv1.0/getfile?dDocName=STELPRDC5100734 (last
visited Oct. 15, 2012).
7
  Fiscal Year 2012 Description of Funded Projects, U.S. DEP’T OF AGRIC., AGRIC. MKTG. SERV.,
http://www.ams.usda.gov/AMSv1.0/getfile?dDocName=STELPRDC5100734 (last visited Oct. 15, 2012). Press Release, California
Agriculture Leads the Nation in Funding for Specialty Crops (Oct. 1, 2012), available at
http://www.cdfa.ca.gov/egov/Press_Releases/Press_Release.asp?PRnum=12-035.


                                                                                                            Food System Infrastructure | 19
     (2) any additional funding is determined by taking the proportion of the value of specialty crop
      production in the state as compared to the national value of specialty crop production.8

As the funding equation shows, each state has a baseline of funding it will receive, and any additional
funding is dependent on the proportion of specialty crops your state produces compared to the rest of the
country.9 California received the most money from the Specialty Crop Block Grant Program in 2012 ($18
million).10 California’s proportion of national specialty crop production is quite high, which results in a
higher grant award. Most of the grant awards were in the $200,000 range, suggesting the proportion of
specialty crop funding is about equal across many states.

Examples of the projects that were funded through the Specialty
Crop Block Grant program in 2012 include the following:                        SOURCES OF FUNDING
   In Alabama, a project to promote the production of In addition to Specialty Crop Block
     hydroponic specialty crops (grown in water).11                     Grants, another significant source of
                                                                        grant    funding     comes      from
   In California, a project to ―to raise awareness of honey bee environmental- and conservation-
     Best Management Practices (BMPs) through an easily based grants. For example, organic
     accessible social media campaign.‖12                               producers and those transitioning to
   In Connecticut, a project to ―increase institutional use of organic production can receive funds
     Connecticut Grown produce in foodservice operations . . . through the Organic Initiative of the
                                                                        Environmental Quality Incentives
     by determining what infrastructure currently exists and what
                                                                        Program.
     additional infrastructure would be required to aggregate
     produce from Connecticut specialty crop producers and Source: 16 U.S.C. § 3839aa-2(i) (2012).
     transform it into the products needed by institutions.‖13
   In Iowa, a project to ―gather both economic and social
     impact data for compilation and distribution to regional stakeholders in support of building the
     regional infrastructure necessary for increasing specialty crop production.‖14

Here are some actions a state food policy council can take with regard to federal specialty crop block grants:
  Review the state’s polices regarding applying for and awarding these grants.15 The state Department
      of Agriculture’s website and USDA’s Agricultural Marketing Service website provide helpful
      information about how to apply for a specialty crop block grant.16
  Work to ensure specialty crop growers are aware of these grants and work with the state Department
      of Agriculture to be more proactive in applying for these grants.

8
  Specialty Crop Block Grant Program–Farm Bill, 74 Fed. Reg. 13313, 13314 (Mar. 27, 2009).
9
  Id.
10
   Press Release, California Agriculture Leads the Nation in Funding for Specialty Crops (Oct. 1, 2012), available at
http://www.cdfa.ca.gov/egov/Press_Releases/Press_Release.asp?PRnum=12-035.
11
   Fiscal Year 2012 Description of Funded Projects, U.S. DEP’T OF AGRIC., AGRIC. MKTG. SERV.,
http://www.ams.usda.gov/AMSv1.0/getfile?dDocName=STELPRDC5100734 (last visited Oct. 15, 2012).
12
   Id.
13
   Id.
14
   Id.
15
   See IDALS Specialty Crop Block Grant Program Guidelines and Request for Proposals, IOWA DEP’T OF AGRIC. AND LAND STEWARDSHIP,
http://www.iowaagriculture.gov/Horticulture_and_FarmersMarkets/pdfs/SpecialtyCropGrant2012/2012GuidelinesandRFPwlogicmodel.pd
f (last visited Sept. 26, 2012).
16
   Specialty Crop Block Grant Program—Farm Bill, U.S. DEP’T OF AGRIC., AGRIC. MKTG. SERVhttp://www.ams.usda.gov/AMSv1.0/SCBGP (click
on ―Apply for a Grant‖ on the right-hand side of the page) (last visited Sept. 26, 2012).


                                                                                                   Food System Infrastructure | 20
      Work with other stakeholders and apply for a
       specialty crop block grant to provide technical
                                                                              Federal Crop Insurance Primer
       assistance or tutorials to specialty crop farmers
       in the state about ways to increase their                      Federal crop insurance has been a hot topic of
       production or marketing techniques.                            discussion in the food and agriculture community
                                                                      lately. Recent discussions around the 2012 Farm
In addition to working to ensure that your state is                   Bill reauthorization have focused on eliminating
                                                                      direct payment subsidies to farmers in favor of
taking advantage of the federal Specialty Crop Block
                                                                      strengthening subsidized crop insurance programs.
Grant Program, remember that there are other ways                     Federal crop insurance programs and subsidies, like
to incentivize specialty crop production in your state.               farm subsidies, are mainly designed for commodity
In particular, states themselves can also support                     crops. If this happens, the main beneficiaries will
specialty crop growers. State food policy councils can                continue to be commodity crop producers.
advocate for state grant programs to support the
                                                                      There are a few crop insurance programs that can
production of healthy foods. When crafting a new                      be used by specialty crop producers. The primary
grant program, your council could push for the state                  programs are AGR (adjusted gross revenue) and
to fund grants directed to farmers who are going to                   AGR-Lite administered by the USDA Risk
produce specialty products, farms that are switching                  Management Agency, and NAP (the non-insured
to sustainable practices, experimental growers, young                 crop disaster assistance program) administered by
farmers, and/or farmers who are redeveloping or                       the USDA Farm Service Agency.
reclaiming land and making it suitable for agriculture.               Food policy councils should be aware that these
                                                                      programs exist and should find out what programs
Tax Incentives Using state tax rules to promote                       for specialty crops are offered in the state.
production of specialty crops and healthy products                    Source: Crop Insurance Primer, ENVTL. WORKING GRP.,
may be a state food policy council’s most flexible and                http://farm.ewg.org/crop_insurance_analysis.php (last
wide-ranging policy tool. Tax incentives refer to                     visited Oct. 17, 2012); Adjusted Gross Revenue-Lite (AGR-L),
                                                                      U.S. DEP’T OF AGRIC., RISK MGMT. AGENCY,
different tax rules or rates that are intended to                     http://www.rma.usda.gov/policies/agr-lite.html (last visited
promote certain behaviors or transactions.                            Oct. 17, 2012); Adjusted Gross Revenue (AGR), U.S. DEP’T OF
                                                                      AGRIC., RISK MGMT. AGENCY,
                                                                      http://www.rma.usda.gov/policies/agr.html (last visited
State food policy councils should push their state to                 Oct. 17, 2012); Noninsured Crop Disaster Assistance Program,
adopt a tax incentive program to promote specialty                    U.S. DEP’T OF AGRIC., FARM SERV. AGENCY,
crop production. Food policy councils can also                        http://www.fsa.usda.gov/Internet/FSA_File/nap08.pdf (last
                                                                      visited Oct. 17, 2012).
advocate that their state take advantage of or develop
programs that help producers navigate the complex
tax code. For example, North Carolina State University Cooperative Extension regularly holds
workshops regarding several different issues involving taxes for farmers, from sales tax on food to taking
advantage of these different tax incentives.17

Here are a few different forms of tax incentives for which food policy councils can advocate:
  Reduced tax rates can be applied to certain incomes or transactions. For example, farm property may
      be taxed less than commercial property and farming income may be taxed at a lower rate than other
      personal income. North Dakota and Pennsylvania provide a property tax exemption or tax
      reduction for farm property and farmsteads; however, it only applies to farms that are 10 acres or



17
  Enhancing Sustainability Workshops, CHATHAM COUNTY CENTER OF NORTH CAROLINA COOPERATIVE EXTENSION,
http://chatham.ces.ncsu.edu/growingsmallfarms/workshops.html (last visited Sept. 27, 2012).


                                                                                                  Food System Infrastructure | 21
           larger.18 If your state does not have a reduced tax rate for farms, your state food policy council should
           advocate implementing a program that includes smaller farms from the beginning. If your state
           already has a reduced tax rate for farms, your state food policy council should advocate to lower the
           acreage limit to include smaller farms.
      Tax credits are set amounts of money that eligible individuals can deduct from their tax bill for
           various reasons. With regard to agriculture, some states (and local governments) have instituted tax
           credits for organic farming,19 for young or new farmers,20 and for certain agricultural industries like
           dairy or livestock.21 Tax credits can also be used to incentivize particular procurement practices, like
                                                           a tax credit for purchasing local food, which in turn may
                                                           stimulate more food production. In Iowa, there was an
                          TAX REBATES                      effort to implement a 20% tax credit for restaurants and
                                                           other retail food markets that purchase local food.22
     In 2005, Woodbury County, Iowa, passed a              Although it has not yet passed the state legislature, the
     tax rebate program for farmers who                    language of the legislation provides a good model for other
     transitioned their land from conventional to
                                                           states seeking to use tax credits to incentivize local food
     organic production. The program provides up
     to $50,000 in real property tax rebates for           purchasing.
     farms that are transitioning to meet the                  Tax rebates require the government to return a
     organic requirements set forth in the National        portion of the amount the taxpayer paid. For example,
     Organic Program. Even though this is a                Woodbury County, Iowa, provides a tax rebate for farms
     county-level action, it could be done at the          that transition from conventional to organic farming (see
     state level.                                          text box).23
     Source: Resolution, Woodbury County Policy for Rural
     Economic Revitalization ―Organics Conversion Policy‖,
                                                               Tax deductions reduce the amount of one’s taxable
     WOODBURY COUNTY, IOWA,                                income, usually based on expenses that were part of the
     http://old.woodburyiowa.com/departments/Economi       cost of doing business or used to produce income. A
     cDevelopment/wc%20organics%20policyv4.pdf (last
     visited Sept. 27, 2012).
                                                           deduction could be used as a way to reduce the tax rate by
                                                           money spent on farm inputs

                                                  Overall, state tax incentives may be used to help promote
healthy food production, sustainable food production, local purchasing, and other responsible farming
practices that can lead to healthy, robust citizens. The examples above are all potential policies that state
food policy councils may choose to support in their mission to improve state agriculture.




18
   Property Tax Frequently Asked Questions #3, N.D. STATE GOV’T, http://www.nd.gov/tax/misc/faq/property/#Question3 (last visited Sept.
27, 2012); Application for Property Tax Exemption for a Farm Residence, N.D. STATE GOV’T, http://www.nd.gov/tax/property/forms/farm-
exempt.pdf (last visited Sept. 27, 2012); The Taxpayer Relief Act Frequently Asked Questions for Taxpayers, PA. DEP’T OF EDUC.,
http://www.portal.state.pa.us/portal/server.pt/community/property_tax_relief/7452 (last visited Sept. 27, 2012).
19
   Resolution, Woodbury County Policy for Rural Economic Revitalization ―Organics Conversion Policy‖, WOODBURY COUNTY, IOWA,
http://old.woodburyiowa.com/departments/EconomicDevelopment/wc%20organics%20policyv4.pdf (last visited Sept. 27, 2012).
20
   Beginning farmers in Nebraska receive: (1) a three-year lease rather than the typical one-year lease; (2) a $500 tax credit reimbursement for a
required financial management course; and (3) eligibility for the personal property tax exemption. Beginning Farmer Programs – tax credit
programs, NEB. DEP’T OF AGRIC., http://www.agr.ne.gov/beg_farmer/taxcpbfr.html (last visited Sept. 27, 2012).
21
   Dairy Farmer Tax Credit Program, MASS. DEP’T OF AGRIC. RES., http://www.mass.gov/agr/dairy/dairy_tax_credit.htm (last visited Sept. 27,
2012).
22
   Iowa Senate Study Bill 3236,Iowa Local Farmer and Food Security Act (2010), available at http://coolice.legis.iowa.gov/Cool-
ICE/default.asp?category=billinfo&service=billbook&GA=83&hbill=SSB3236.
23
   Resolution, Woodbury County Policy for Rural Economic Revitalization ―Organics Conversion Policy‖, WOODBURY COUNTY, IOWA,
http://old.woodburyiowa.com/departments/EconomicDevelopment/wc%20organics%20policyv4.pdf (last visited Sept. 27, 2012).


                                                                                                             Food System Infrastructure | 22
Loans Loans are another great way for states to increase production of certain crops and/or promote
specific production methods. Many state loan programs are already available for various purposes, including
for new or young farmers,24 to incentivize production of certain agricultural products,25 and for
environmental purposes (e.g. land reclamation, conservation projects, and renewable energy projects).26

Loans are similar to grants and tax incentives in that they provide funds to farmers to do projects the
farmers might not otherwise do. Loans are usually less costly to the state than grants and tax incentives
because they are designed to be paid back at some point. Although loan programs cost the state some
money for personnel and administrative costs, the advantages of government-supported loan programs are
significant. Farmers have the opportunity to utilize a low interest rate and the state has the opportunity to
identify particular types of production or crops of interest that it hopes to support through the loan
program. State food policy councils should find out about the financing needs of small-scale farmers in their
state and advocate that their state implement a loan program addressing those gaps.

Loan programs in Minnesota and Iowa provide great examples. Minnesota has a Sustainable Agriculture
Loan Program that provides funds to farmers who are seeking to make improvements to their farms that
will increase the environmental and economic viability of the farms. 27 Iowa’s Beginning Farmer Loan
Program assists new farmers in purchasing agricultural land.28 Part of the program provides lenders tax-
exempt interest on the income earned, which allows the
lenders to charge the beginning farmers a lower interest rate.29
                                                                                            WHERE ARE THE NEW FARMERS?
Farmer Training Programs Advocating for the state                                      One way to advocate for new farmers (and
to put resources in farmer training programs is a high-impact                          the development of more local food
way that food policy councils can help shape agricultural                              production) is to work with state
production in their states. While training programs may not                            universities to develop new farmer
directly result in big increases in agricultural investment or                         training programs.
development, the role these programs play in introducing new
                                                                                       California has an apprenticeship program
techniques and in transferring knowledge between generations                           at University of California Santa Cruz. The
cannot be emphasized enough, particularly with regard to                               program focuses on training potential
organic and sustainable growing methods, for which there may                           farmers in small-scale farming and organic
be a dearth of training in the state. Training programs can be                         gardening.
designed to assist farmers in many areas, including agricultural                       Source: Apprenticeship Information, THE CTR. FOR
best     practices,    environmental       and     sustainability                      AGROECOLOGY & SUSTAINABLE FOOD SYS.,
improvements, risk management, entrepreneurship,                                       http://casfs.ucsc.edu/apprentice-
                                                                                       training/apprenticeship-information (last visited
marketing and sales, and technology.                                                   Oct. 16, 2012)

Food policy councils can both advocate for state governments
to provide funding for these training programs and also work

24
   Farm Funding Resources (Loans and Grants): 4) Links to State Loan Programs, BEGINNING FARMERS, http://www.beginningfarmers.org/funding-
resources/ (last visited Oct. 15, 2012). For a federal example, see Beginning Farmers and Ranchers Loans, U.S. DEP’T OF AGRIC. FARM SERV.
AGENCY, http://www.fsa.usda.gov/FSA/webapp?area=home&subject=fmlp&topic=bfl (last visited Sept. 27, 2012).
25
   Connecticut Dairy Farm Reinforcement Program Loans, CONN. DEP’T OF AGRIC., http://www.ct.gov/doag/cwp/view.asp?a=1368&q=331334
(last visited Sept. 27, 2012).
26
   Sustainable Agriculture Loan Program, MINN. DEP’T OF AGRIC., http://www.mda.state.mn.us/grants/loans/esaploan.aspx (last visited Sept. 27,
2012).
27
   Id.
28
   Beginning Farmer Loan Program, IOWA AGRIC. DEV’T AUTH., http://www.iada.state.ia.us/BFLP/index.html (last visited Oct. 15, 2012).
29
   Id.


                                                                                                          Food System Infrastructure | 23
with agricultural experts from vocational schools and universities to develop and host effective
programming.

PROCESSING         Agricultural processing refers to any food preparation activities that transform a raw
agricultural product into a different food product. The discussion about processing covers raw agricultural
products (meat, poultry, egg products, fruits and vegetables) as well as cottage food operations (e.g. baked
goods, granolas, preservatives made in home kitchens). Access to processing infrastructure is essential to
building a sustainable food system within your state.
                                                                                  MOBILE PROCESSING
Processing facilities allow food producers to provide a wider
array of products, extend the shelf life of products, and               To foster local processing, the Island
increase producers’ income because they can sell value-added            Grown       Farmers     Cooperative     in
or processed foods at a higher price than the raw products.             Washington became the first cooperative
Even minimal processing of foods, such as chopping and                  to receive a USDA-inspected mobile meat-
washing leafy greens, can help to add value and thus increase           slaughtering unit in 2002. Local farmers
                                                                        who are part of the cooperative have the
the take-home pay for growers and producers. Increased pay
                                                                        advantage of using the mobile slaughtering
not only encourages more individuals to grow and produce                unit, which allows them to sell USDA-
food, but it also has an economic multiplier effect on both the         inspected meat interstate without having
local and state economy. In addition, processing allows for             to have a USDA approved facility.
increased utilization of raw commodities and livestock, which
                                                                        A state-inspected mobile slaughter unit is
means the community experiences less waste, improves
                                                                        also an option for states. The processors
profitability and job creation, and decreases reliance on               using state-inspected mobile slaughter
infrastructure outside the region.                                      units would be limited to selling their
                                                                        products within the state.
Examples of food processing infrastructure include cold
                                                                     Source: About IGFC, ISLAND GROWN FARMERS COOP,
storage facilities; shared-use food processing centers and http://www.igfcmeats.com/2.html (last visited
agricultural facilities (for grading, storing, and packaging Sept. 28, 2012).
foods); grain milling facilities; dairy processing facilities (for
milk bottling and cheese making); and meat and poultry
slaughter and processing facilities (including mobile processing facilities).

North Carolina has done extensive research on shared-use processing facilities. The Center for
Environmental Farming Systems held a summit in North Carolina to discuss ways to expand independent
farmers’ access to affordable value-added processing and agricultural facilities while ensuring profitability
and food safety. Summit participants came to the following conclusions:
   The success of shared-use facilities is highly dependent on a variety of factors, including: location
      (proximity to food entrepreneurs and consumer markets); client access to technical assistance and
      training in business management; and availability of capital.
   The improvement of supply chain management is necessary to enable sufficient aggregation and entry
      of farmers’ products into local markets.
   The confluence of federal, state, county, and local regulatory requirements, taken together, can
      impede development of and investment in small-scale facilities at the local level.




                                                                                        Food System Infrastructure | 24
      There is a need for a ―one-stop‖ shopping source of regulatory, educational, and technical assistance at
       the state level for farmers, food entrepreneurs, and food system businesses.30

There are a few innovative ways states can support the processing infrastructure in their state, such as
funding mobile slaughter and processing units or local slaughterhouses, or introducing or improving cottage
food laws. These topics are discussed in Section VIII: Food Safety & Processing because food processing
brings with it increased food safety regulation and oversight.

AGGREGATION & DISTRIBUTION                     Whether food items are processed or raw, getting those
products to market remains an issue. To meet this challenge, it is important to establish a strong food
aggregation and distribution sector. As the demand for local produce increases and small to mid-size
farmers respond by scaling up production, these farmers will need to move beyond direct sales of small
quantities to larger transactions. An aggregation sector that fosters these larger transactions by buying
farmers’ products in bulk and at competitive prices, or coordinating larger purchasers to do so, can help
farmers continue to expand their markets and grow their farm business.

Aggregation and distribution services create networks that link small and mid-sized farmers and bring their
food to wider markets. Aggregators source produce from multiple farms in order to achieve volumes
suitable for larger buyers. Aggregators sometimes take the role of ―food hubs,‖ which are organizations
(private or nonprofit) that act as centralized supply chain coordinators.31 Food hubs offer a variety of
services centered on bringing together producers and consumers,32 such as product storage, branding and
market promotion, and food safety and good agricultural practices (GAP) training.33

The size and scale of food hubs vary, from the small food hub serving only Charlottesville, Virginia, to the
regional food hub serving five states in the Pacific Northwest.34 Food hubs buy products from local
growers and processors and then resell products to local restaurants, schools, and grocery stores. The
advantages of food hubs include: creating economies of scale; enabling sales at greater prices with reduced
transactions costs; providing greater access to local and conventionally farmed foods; and providing a way
for smaller growers to engage in commercial selling without having to buy expensive liability insurance,
because food hubs often carry their own liability insurance policies.35

To promote the growth of food hubs, the USDA has begun partnering with the Wallace Center at Winrock
International, the National Good Food Network, and others, to form the National Food Hub
Collaboration.36 This Collaboration is working to support the growth and development of food hubs and has

30
   Processing & Food Systems Infrastructure, CTR. FOR ENVTL. FARMING SYS., http://ncsustainablefood.wordpress.com/working-issue-
groups/processing-food-systems-infrastructure (last visited Dec. 16, 2011).
31
   Food Hubs: Building Stronger Infrastructure for Small and Mid-Sized Producers, U.S. DEPT. OF AGRIC., AGRIC. MKTG. SERV.,
http://www.ams.usda.gov/AMSv1.0/FoodHubs (last visited Oct. 3, 2012).
32
   ―A regional food hub is a business or organization that actively manages the aggregation, distribution, and marketing of source identified food
products primarily from local and regional producers to strengthen their ability to satisfy wholesale, retail, and institutional demand.‖ Regional
Food Hub Resource Guide, U.S. DEP’T OF AGRIC., AGRIC. MKTG. SERV. 4 (Apr. 2012),
http://www.ams.usda.gov/AMSv1.0/getfile?dDocName=STELPRDC5097957.
33
   Id. at 6.
34
   About Us: Mission, LOCAL FOOD HUB, http://localfoodhub.org/about/mission/ (last visited Oct. 3, 2012); About Food Hub, FOOD HUB,
http://food-hub.org/pages/about (last visited Oct. 3, 2012).
35
   For more positive impacts of regional food hubs, see Regional Food Hub Resource Guide, U.S. DEPT. OF AGRIC., AGRIC. MKTG. SERV. 14–23
(Apr. 2012), http://www.ams.usda.gov/AMSv1.0/getfile?dDocName=STELPRDC5097957.
36
   National Good Food Network Food Hub Collaboration, WALLACE CTR. AT WINROCK INT’L, http://www.wallacecenter.org/our-work/current-
initiatives/food-hub-collaboration (last visited Oct. 3, 2012).


                                                                                                              Food System Infrastructure | 25
created and compiled a wealth of resources available to the public.37 The USDA’s Regional Food Hub Resource
Guide offers guidance on where and how states can secure financial support for starting a food hub. 38

Here are some ways state food policy councils can support the development of the aggregation and
distribution infrastructure in their states:
   Identify whether local or regional food hubs are already in operation in their state.
   If there are local or regional food hubs in place, seek to collaborate with the food hubs on helping
       them improve their services and reach, as well as seek funding or regulatory change that can help the
       food hub to increase their operational capacity.
   If there are no local or regional food hubs in operation, gather interested stakeholders and work to
       create one. Identify which sources of funding (grants or otherwise) are available to provide seed
       financing for the endeavor.39
   In either case, advocate for the state government to appropriate further financial support for either a
       state food hub or a regional food hub in collaboration with other states. Here, food policy councils
       can serve an integral role by making connections with other state food policy councils or state
       governments to attempt to organize an interstate food hub, which might be especially appropriate in
       regions with smaller states like New England or the Southeast.

RETAIL There are many opportunities for policy changes to a state’s food system at the retail level.
―Retail‖ refers to the point of purchase where consumers obtain food. Retailers can include:
   restaurants
   school cafeterias
   institutions (such as universities, state agencies, hospitals)
   wholesale clubs
   grocery stores
   farmers markets
   roadside fruit stands
   community supported agriculture operations (CSAs) and
   mobile vending operations.

Increasing food retail opportunities is a significant way to support the growers in your state. For more
information about opportunities for local growers to increase their markets, see Section VI: Farm to
Institution. For information about increasing the number and distribution of retailers, see Section V:
Consumer Access & Consumer Demand. In addition to promoting farm to institution policies, state food
policy councils can also encourage local grocery stores and restaurants to purchase local foods in order to
increase market for those foods and improve the local food system overall.
37
   Id.
38
   Regional Food Hub Resource Guide, U.S. DEPT. OF AGRIC., AGRIC. MKTG. SERV. 34–70 (Apr. 2012),
http://www.ams.usda.gov/AMSv1.0/getfile?dDocName=STELPRDC5097957.
39
   In addition to the resources listed in the USDA Regional Food Hub Resource Guide, here are more sources of funding: Potential USDA
Programs to Support Regional Food Hub Development, U.S. DEP’T OF AGRIC., AGRIC. MKTG. SERV.,
http://www.ams.usda.gov/AMSv1.0/getfile?dDocName=STELPRDC5091483 (last visited Oct. 3, 2012); The National Sustainable Agriculture
Coalition’s Guide to USDA Funding for Local and Regional Food Systems, NAT’L SUSTAINABLE AGRIC. COAL. (2010),
http://www.ams.usda.gov/AMSv1.0/getfile?dDocName=STELPRDC5097198.


                                                                                                    Food System Infrastructure | 26
FOOD WASTE MANAGEMENT                     In a well-constructed food system, every element of the food
supply chain contributes to the improvement of the food system. Despite high rates of hunger and food
insecurity, recent years have seen huge growth in the amount of food that goes to waste. Improving the
food system infrastructure to reduce the amount of food that is wasted (e.g. by reducing spoilage from field
to market, increasing markets, improving donation laws, etc.) and/or enacting policies that utilize the food
waste (e.g. through composting) are important areas for policy advocacy. Composting is discussed below,
while expiration dates and gleaning/food donation laws are discussed in Section V: Consumer Access &
Consumer Demand.

Food that is no longer safe to eat can be used as compost. Composting is a process often used in organic
farming and involves using decomposed organic matter, such as plants and food waste, as fertilizer for crop
growth. It is vastly preferable to other common methods of waste disposal because it not only improves
environmental impacts by reducing waste, but also provides on-farm benefits by enriching the soil. It can
prevent further pollution, remedy polluted soil, prevent erosion, generally reduce the amount of water,
pesticides, and fertilizers needed, and increase overall food production.40 States can play a role in
supporting or requiring food waste to be composted. For example, in 2011, Connecticut passed a law
that requires certain food establishments to compost their organic waste.41 The Illinois Department of
Commerce & Economic Opportunity provides funding for innovative compost projects through a grant
program called the Food Scrap Composting Revitalization & Advancement (F-SCRAP) Program.42 The
grants support projects that divert food and organic material from landfills towards composting.43 There are
great examples of how states can improve their composting infrastructure by requiring entities to compost
and by encouraging and financially supporting creative solutions from their citizens.

Food policy councils can increase community and government support for collecting compost materials by:
   Emphasizing the noted economic and environmental benefits to farmers and the state by referencing
     successful composting programs in other states;
   Working to reduce restrictions on what foods can be included in compost, such as proteins, fats, and
     oils, as well as other agricultural byproducts;
   Pushing for laws like that in Connecticut that require composting to be utilized in certain cases; and
   Advocating for funding for both government-funded large-scale composting initiatives as well as
     privately-supported small-scale composting initiatives, like Illinois.

CONCLUSION           From production to processing through aggregation and distribution, all the way to
retail and food waste, each level of a state’s food system infrastructure has opportunities for food policy
councils to effect state-level change. State food policy councils should evaluate the current policies at play in
their state’s food supply chain and identify areas most in need of change.




40
   Environmental Benefits, U.S. ENVTL. PROT. AGENCY, http://www.epa.gov/osw/conserve/rrr/composting/benefits.htm (last visited Oct. 17,
2012).
41
   An Act Concerning the Recycling of Organic Materials by Certain Food Wholesalers, Manufacturers, Supermarkets and Conference Centers,
2011 Conn. Pub. Acts 11-217.
42
   Recycling, IL. DEP’T OF COMMERCE & ECON. OPPORTUNITY, http://www.ildceo.net/dceo/Bureaus/Energy_Recycling/Recycling/ (last
visited Nov. 6, 2012).
43
   Id.


                                                                                                      Food System Infrastructure | 27
SECTION III: LAND USE & PLANNING
Land use and planning can have a significant impact on food systems by determining how land is utilized throughout the state.
Although local governments are primarily in charge of setting their own land use policy (using authority granted by the state), state
governments still play an important role. States can set comprehensive state land use plans, as well as implement a variety of
programs that encourage the preservation of farmland.
OVERVIEW Land use and planning can significantly impact food systems by impacting whether land is
available for farming. This section presents an overview of land preservation techniques and discusses the
importance of protecting land that is being farmed sustainably. It describes ways that food policy councils
can advocate to improve the existing legal scheme governing land use in order to advance their goals.
1. Basic Concepts of Land Use & Planning This subsection introduces the background
concepts of land use regulation and planning.
2. Farmland Preservation Techniques: State Land Use Policies This section outlines
how a state can adopt a statewide land use plan or land use policies to preserve land for agricultural use.
3. Farmland Preservation Techniques: Restricting Land to Agricultural Uses
This section lays out ways states can preserve farmland by encouraging farmers to voluntarily restrict their
rights to develop their farmland in exchange for compensation or tax benefits, through donation of
conservation easements, purchase of development rights, and transfer of development rights, among others.
4. Other Farmland Preservation Techniques As described in this section, states can adopt
several less costly options to preserve farmland and protect local farmers, including right to farm laws,
agricultural district programs, and programs linking young farmers with experienced farmers.

BASIC CONCEPTS OF LAND USE & PLANNING Land use and planning refers to the various
ways in which state and local governments regulate how land within their jurisdictions is utilized. Zoning is
a common example of this field: governmental agencies (typically at the local level) draw zoning maps of
cities that indicate which areas are to be used for residential purposes, for commercial purposes, for
industry, for mixed-use, etc. Once these zones are designated, certain activities are allowed or disallowed
in each of the zones. Governments also engage in other types of land use and planning policy, including
restricting the scope or type of development in certain areas or protecting natural resources.

The state government’s role in land use and planning varies depending on the state. As described in more
detail in Section I: General Legal Setting, the U.S. Constitution reserves certain powers to the states rather
than the federal government,1 such as the police power, which includes the right to create regulations about
the use of land.2 What states do with this power—for example, whether the power is kept in the hands of
the state or is delegated to localities and municipalities—is determined by the state.3 With some limitations
to protect the rights of individuals, the constitution generally gives states the authority to dictate all land use
policies enacted within their borders, but most states delegate a large portion of their land use and planning
authority to the local governments.4 However, some states utilize more central planning techniques to craft
statewide land use policies and delegate less power to localities. In other words, all states have the power to

1
  U.S. CONST. amend. X.
2
  PETER W. SALSICH & TIMOTHY J. TRYNIECKI, LAND USE REGULATION: A LEGAL ANALYSIS & PRACTICAL APPLICATION OF LAND USE LAW 3 (Aen.
W. Webster et al. eds., 2d ed. 2004).
3
  For a more in-depth discussion about the local government authority, see HARVARD LAW SCHOOL FOOD LAW & POLICY CLINIC, GOOD LAWS,
GOOD FOOD: PUTTING LOCAL FOOD POLICY TO WORK IN OUR COMMUNITIES 5–10 (June 2012).
4
  For more information about local government’s role in land use and planning, see id. at 30–45.


                                                                                                          Land Use & Planning | 28
regulate land use and planning, but they vary as to whether they exercise that power at the state level.
Whether or not states delegate a large portion of their land use power to localities, state governments still
have many opportunities to exercise their authority to support farmland preservation.

FARMLAND PRESERVATION TECHNIQUES: STATE LAND USE POLICIES One of the
state government’s primary roles in farmland preservation is to enact policies that either create statewide
protection of agricultural land or enable and encourage local governments to adopt land use planning
techniques that preserve farmland to the greatest extent possible in the face of urban or suburban sprawl.
These statewide plans can take the form of individual policies and programs that protect farmland or can be
combined into a comprehensive statewide farmland preservation plan. State legislatures can create farmland
preservation programs with state financial assistance that are open to county governments for participation.
Such ―opt-in‖ programs, if properly incentivized, can give states significant influence over local land use
planning. This type of technique can be effective even
where state governments have delegated significant
land use authority to local governments.                             STATEWIDE LAND USE PLAN
                                                                           Oregon has adopted 19 statewide planning goals in
States may also want to take a hybrid approach,                            the area of land use and related subjects. The goals
combining attempts to influence local governments                          include establishing a land use planning process and
with some amount of central planning to ensure their                       policy framework to ensure all land use decisions
food production systems are not swallowed up by                            have a factual basis. The state’s Land Conservation
urban and suburban expansion.                                              and Development Commission (LCDC) is charged
                                                                           with checking for consistency between local
                                                                           comprehensive plans and Oregon’s 19 statewide
As described above, there are several different
                                                                           planning goals.
alternatives to structure statewide farmland
preservation policies or plans. State food policy Source: Statewide Planning Goals, OR. DEP’T OF LAND
                                                           CONSERVATION & DEV.,
councils may wish to use some of the following http://www.oregon.gov/LCD/Pages/goals.aspx (last visited
examples as models for their own advocacy efforts:         Oct. 5, 2012).

    Rhode Island has a plan called Land Use
      2025.5 In it, the state government takes
      control of many aspects of land use planning for the entire state, including designations of Urban
      Services Boundaries throughout the state, within which urban growth should be contained to protect
      rural areas located outside the boundaries.6 Rhode Island’s statewide land use plan approach has the
      advantage of establishing a cohesive policy for the entire state designed to meet all of the state’s land
      use needs in the future: in other words, it allows the state to ensure that residential, urban,
      agricultural, and rural land use are all considered on a statewide basis rather than having
      municipalities establish a patchwork of policies that may not fit together well for the benefit of the
      entire state.7
    Oregon’s statewide land use plan has the preservation of agricultural land as one of its top three
      goals. Similar to Rhode Island, it is an example of a state taking control of the agricultural
      preservation process by mandating certain statewide standards for the preservation of Oregon’s
      agricultural lands. The plan states that agricultural lands (as defined in state law) will be preserved


5
  See Land Use 2025: Rhode Island State Land Use Policies and Plan, R.I. DEP’T. OF ADMIN. DIV. OF PLANNING STATEWIDE PLANNING PROGRAM (Apr.
2006), http://www.planning.ri.gov/landuse/121/landuse2025.pdf.
6
  Id. at vi.
7
  It is important to note that Rhode Island has no governance at the county level, only at the local and state level.


                                                                                                                Land Use & Planning | 29
      and maintained for farm use.8 It allows for certain specified non-farm uses of agricultural land, but
      strongly discourages such uses in order to maximize agricultural productivity.9 Still, the plan leaves a
      certain amount of discretion to county governments, directing them to establish rules (within the
      state requirements) for the designation and zoning of agricultural lands.10 Oregon also has a robust set
      of growth management laws, which are laws that control the timing and phasing of urban growth, and
      which can be used to help protect farmland from conversion. Under these laws, every county in the
      state has implemented agricultural protection zoning, resulting in the protection of more than 16
      million acres of agricultural lands.11
     The Florida Rural Land Stewardship Program is one example of how a state can use a series of
      policies to preserve farmland even if it has already delegated much land planning power to local
      governments.12 Under the program, counties can designate Rural Land Stewardship Areas that
      require certain non-urban uses of large swathes of land for a set period of years. 13 Counties can
      designate areas as agricultural, rural, open, or open-rural under the program.14 While it is not geared
      exclusively toward preserving farmland, preserving agricultural land use is one of the key goals of the
      policy.15 In setting up this program, Florida’s lawmakers were able to set land use and planning policy
      through the local governments.16 The legislature set program goals, such as agricultural economy
      preservation, that clearly have statewide reach and intent.17 Yet it did not mandate the program’s
      implementation or withdraw any of the land use planning power it had traditionally delegated to
      counties; rather, it gave counties a tool with which to accomplish these goals on a local level.18

State food policy councils should find out if their states already have some sort of statewide land use plan or
programs in place and review these programs to ensure they include strong protection for farmland. For
example, do the plan or programs specifically provide for farmland preservation? Do they set preservation
goals?19 Food policy councils can then advocate for the state to either implement a more coordinated
statewide land use or farmland preservation plan or push for the state to develop tools and incentives that
would encourage localities to adopt more farmland preservation measures.

FARMLAND PRESERVATION TECHNIQUES: RESTRICTING LAND TO
AGRICULTURAL USES In addition to using statewide planning as a tool for farmland preservation,
there are a set of tools that state and municipal governments, as well as nonprofit organizations, can use in
order to restrict future uses of agricultural land and thus preserve more land for food production.



8
  Oregon’s Statewide Planning Goals & Guidelines, Goal 3: Agricultural Lands, OR. DEP’T. OF LAND CONSERVATION & DEV.,
http://www.oregon.gov/LCD/docs/goals/goal3.pdf (last visited Oct. 5, 2012).
9
  Id.
10
   Id.
11
   Fact Sheet: The Farmland Preservation Toolbox, AM. FARMLAND TRUST: FARMLAND INFO. CTR. 4,
http://www.farmlandinfo.org/documents/27761/fp_toolbox_02-2008.pdf (last visited Nov. 8, 2012).
12
   Rural Land Stewardship Program, FLA. ATL. UNIV. CTR. FOR URBAN & ENVTL. SOLUTIONS,
http://www.cues.fau.edu/toolbox/subchapter.asp?SubchapterID=34&ChapterID=1 (last visited Oct. 5, 2012).
13
   Id.
14
   Id.
15
   Id.
16
   Id.
17
   Id.
18
   Id.
19
   See generally Guidelines for Developing Municipal Comprehensive Farmland Preservation Plans, NJ STATE AGRIC. DEV. COMM. (May 2007),
http://www.nj.gov/agriculture/sadc/farmpreserve/programs/pigmunicipalplanguidelines.pdf.


                                                                                                                     Land Use & Planning | 30
Conservation Easements One way to accomplish farmland preservation is through the use of a
conservation easement. A conservation easement is a deed restriction voluntarily placed on a landowner’s
property to protect resources presently on the land from future development.20 In the context of farmland
preservation, the easement is referred to as an ―agricultural conservation easement‖ because the resource
being protected is productive agricultural land.21 Conservation easements can be purchased, transferred, or
donated, as described below.

Almost all states have passed some form of legislation
allowing conservation easements,22 either by adopting the
                                                                                    DRAWBACKS OF CONSERVATION
1981 National Conference of Commissioners on Uniform
                                                                                           EASEMENTS
State Laws’ Uniform Conservation Easement Act23 (23
states and Washington, DC) or by enacting their own                          It is important to note that conservation
enabling statutes (26 states).24 The Uniform Conservation                    easements have three major drawbacks, which
Easement Act is available to any state wishing to pass a law                 may influence whether conservation
                                                                             easements will provide enough protection for
allowing public agencies and private organizations to
                                                                             farmland:
accept, acquire, and hold conservation easements. North
Dakota is the only state that has not embraced legislation                    They only guarantee the land will not be
enabling conservation easements.25                                             developed, so there is no assurance that the
                                                                               land will actually continue to be farmed
Every conservation easement needs a monitoring entity to                       forever.
ensure that the terms of the easement are enforced. One of                    Monitoring the use of land requires a strong
                                                                               commitment from the easement holder
the most important types of monitoring entities is called a                    (e.g. the monitoring organization, usually
land trust. A land trust is a nonprofit organization whose                     the state or a non-profit), and many of these
mission is to conserve land; the main method they use to                       organizations lack the resources to
accomplish that goal is to facilitate acquisition of                           adequately monitor large numbers of farms
conservation easements, serve as stewards for such                             subject to easements.
easements that others have bought or accepted, and help                       Subsequent landowners may not be willing
negotiate private agreements to conserve land.26 Land                          to uphold the terms of the easement despite
trusts exist in all 50 states,27 and there are roughly 1,700 of                the easement being considered permanent.
them across the country.28 Land trusts are already                           Source: Fact Sheet: Agricultural Conservation Easements, AM.
responsible for conserving 37 million acres of land in the                   FARMLAND TRUST: FARMLAND INFO. CTR. (Jan. 2004),
                                                                             http://www.farmlandinfo.org/documents/27762/AC
United States—roughly the size of New England.29 The                         E_1-04.pdf.
Land Trust Alliance, an organization devoted to promoting
land trusts across the country, maintains a list of the


20
   Fact Sheet: Agricultural Conservation Easements, AM. FARMLAND TRUST: FARMLAND INFO. CTR. (Dec. 2010),
http://www.farmlandinfo.org/documents/27762/ACE_01-2011_.pdf.
21
   Id.
22
   Id.
23
   UNIF. CONSERVATION EASEMENT ACT (1981), available at http://www.cals.ncsu.edu/wq/lpn/PDFDocuments/uniform.pdf.
24
   Fact Sheet: Agricultural Conservation Easements, AM. FARMLAND TRUST: FARMLAND INFO. CTR. (Dec. 2010),
http://www.farmlandinfo.org/documents/27762/ACE_01-2011_.pdf.
25
   Robert H. Levin, A Guided Tour of the Conservation Easement Enabling Statutes, LAND TRUST ALLIANCE, 7 (Jan. 2010),
http://www.landtrustalliance.org/policy/emerging-issues/cestatutesreportnoappendices.pdf.
26
   Land Trusts, LAND TRUST ALLIANCE, http://www.landtrustalliance.org/land-trusts (last visited Sept. 27, 2012).
27
   Fact Sheet: Agricultural Conservation Easements, AM. FARMLAND TRUST: FARMLAND INFO. CTR. (Jan. 2004),
http://www.farmlandinfo.org/documents/27762/ACE_1-04.pdf.
28
   Land Trusts, LAND TRUST ALLIANCE, http://www.landtrustalliance.org/land-trusts (last visited Sept. 27, 2012).
29
   Id.


                                                                                                             Land Use & Planning | 31
                                                     accredited land trusts in each state.30
      TAX CREDITS FOR CONSERVATION
               EASEMENTS                             State food policy councils should push for their state government to
                                                     provide financial incentives to encourage farmers to place
     New York’s conservation easement
     tax credit allows landowners to
                                                     conservation easements on their land. These incentives can take
     receive an annual refund of 25% of              several forms, including cash compensation, transferred property
     their property taxes (up to $5,000).            rights, tax breaks, lower property taxes, and tax credits.
     Source: NYS Conservation Easement Tax Credit,
     N.Y. DEP’T OF ENVTL. CONSERVATION,   Despite the drawbacks (mentioned in the text box above), the
                                          overall utility of agricultural conservation easements is clear, and
     http://www.dec.ny.gov/lands/26428.html
     (last visited Oct. 22, 2012).        state food policy councils should ensure that farmers are able to
                                          preserve their farmland through this mechanism should farmers
                                          choose to do so. Whether a state prefers to encourage sales of
development easements, transfers of development rights, or donations of conservation easements, the key
features are the same: they require land to be used only for agricultural purposes while ensuring that
present landowners retain title to and use of their farmland. Farmers gain two major benefits from all three
of these devices: a financial boon in the form of payment up front or tax benefits, and a guarantee that their
land will remain available for them to farm rather than falling victim to sprawling development. In turn, all
of the state’s citizens benefit from the preservation of more local farms and the locally produced food they
provide. The following sections describe different methods for utilizing conservation easements to preserve
farmland.

Purchase of Development Rights One way to preserve farmland is through the purchase of
development rights (PDR), also known as purchase of agricultural conservation easements (PACE).31
Farmers who sell development rights surrender their rights to develop their land for anything other than
agriculture, while retaining their ability to continue farming their land.32 The farmer thus holds title to his
or her land—meaning he or she is still the owner of the property—and simply sells off the right to use the
land in a manner he or she does not want to take advantage of anyway. These development restrictions
remain in force for any future owners as well. This ability to maintain ownership while selling off one of the
rights that goes along with ownership is based on the notion that property ownership is a bundle of rights;
the owner can sell a certain aspect of land ownership while retaining the rest of the bundle.

The price of a PDR is determined by calculating the difference between the value of the land without
development restrictions (e.g. before the sale of the development right) and the value of the land with
development restricted to agricultural use.33 As of May 2011, 25 states had PDR or PACE programs in
place.34 PDRs have several benefits both to individual farmers and for broader farmland preservation:
   Farmers selling development rights receive both immediate and long-term financial benefits.35 By
      cashing in part of their equity, these farmers receive immediate funds that enable them to pay off

30
   Accredited Land Trusts, LAND TRUST ALLIANCE, http://www.landtrustalliance.org/land-trusts/accredited-land-trusts (last visited Sept. 27,
2012).
31
   Some states, such as New Jersey, refer to PDRs as development easements.
32
   Farmland Preservation Overview, STATE OF N.J. DEP’T OF AGRIC., http://www.nj.gov/agriculture/sadc/farmpreserve/ (last visited Sept. 27,
2012).
33
   Id.
34
   Fact Sheet: Status of State PACE Programs, Farmland Info. Ctr. (2011), http://www.farmlandinfo.org/documents/38371/PACE_State_07-
20111.pdf.
35
   Farmland Preservation Overview, STATE OF N.J. DEP’T OF AGRIC., http://www.nj.gov/agriculture/sadc/farmpreserve/ (last visited Sept. 27,
2012).


                                                                                                                 Land Use & Planning | 32
       debt, purchase new equipment and tools for the long-term health of the farm, or recapitalize their
       farming operation.36
      Selling development rights may help young or new farmers to enter the market. Selling development
       rights reduces the cost of the land to reflect its agricultural production value, since development of
       the land is no longer possible. This reduction of value creates a supply of good, affordable agricultural
       lands for new farmers who would not otherwise be able to purchase farmland.37
      Selling development rights is a flexible tool that can and should be tailored to each individual
       property to achieve the best results for each landowner, community, and state. A PDR can be written
       to include or restrict current or future (as yet undetermined) agricultural practices. Landowners may
       want to sell development rights for only part of their property, or may want to retain future rights to
       build home sites for family members on their land.38 Because PDRs are flexible, these differences are
       possible.
      PDRs are permanent, so the deed restrictions transfer
       to future owners—meaning that if the farmer who sold
       the development easement later sells title to the land to             STATE MONEY FOR PDRS
       another person, that person would also be prevented Even when states provide funding for local
       from developing the land for anything other than PDR programs, such programs can
       agricultural use.39                                           generate controversy. In March 2012,
                                                                                       Tennessee provided grant money to
State food policy councils can push for the use of PDRs as a                           Washington County to help fund its PDR
way to preserve farmland by:                                                           program. The County’s Board of
                                                                                       Supervisors voted 5-2 to accept the
   Advocating for a state law allowing severability of                                $46,000 in state grant money, though the
       development rights from agricultural lands (if not                              decision was not without vocal opposition.
       already allowed). In order for PDRs (and TDRs, see                              Some who opposed the grant money saw
       below) to take place, state law must allow for the                              the program as an overreaching of
       severability of development rights from agricultural                            government into property rights, while
       lands. Most state laws allow this through an enabling                           other who were in opposition to the
       statute, but if your state does not, you should advocate                        program would have rather seen the state
       for such a change.                                                              funding for local PDR programs, which
                                                                                       totaled $1.2 million in 2012, go to other
   Encouraging the state to create a fund that can be used                            areas such as education.
       to purchase development rights. Some ways to secure
                                                                                       Source: Debra McCown, Washington Board Accepts
       funding include: redirecting a portion of state property                        State Grant Money for Purchase of Development Rights
       taxes to this fund; using public funds raised through                           Program, TRICITIES.COM, Mar. 14, 2012,
       voter-approved bond measures to purchase                                        http://www2.tricities.com/news/2012/mar/14/w
                                                                                       ashington-board-accepts-state-grant-money-purchas-
       development rights to agricultural lands, as                                    ar-1763595/.
       Connecticut and Maryland, and other states,
       counties, and towns have done;40 or selling non-

36
   John B. Wright and Rhonda Skaggs, Purchase of Development Rights and Conservation Easements: Frequently Asked Questions, N.M. STATE UNIV.
AGRIC. EXPERIMENT STATION TECHNICAL REP. 34, 4 (2002) http://aces.nmsu.edu/pubs/research/economics/tr34.pdf.
37
   N.M. State Univ., Purchase of Development Rights and Conservation Easements: Frequently Asked Questions 1, 4 (2002), available at
http://aces.nmsu.edu/pubs/research/economics/tr34.pdf.
38
   John B. Wright and Rhonda Skaggs, Purchase of Development Rights and Conservation Easements: Frequently Asked Questions, N.M. STATE UNIV.
AGRIC. EXPERIMENT STATION TECHNICAL REP. 34, 4 (2002) http://aces.nmsu.edu/pubs/research/economics/tr34.pdf.
39
   Farmland Preservation Overview, STATE OF N.J. DEP’T OF AGRIC., http://www.nj.gov/agriculture/sadc/farmpreserve/ (last visited Sept. 27,
2012).
40
   John B. Wright and Rhonda Skaggs, Purchase of Development Rights and Conservation Easements: Frequently Asked Questions, N.M. STATE UNIV.
AGRIC. EXPERIMENT STATION TECHNICAL REP. 34, 5 (2002) http://aces.nmsu.edu/pubs/research/economics/tr34.pdf.


                                                                                                                  Land Use & Planning | 33
       agriculturally viable government-owned land for development, the proceeds from which can be used
       to purchase development easements on land whose agricultural viability should be preserved, as
       Nevada has done.41
      Advocating for the state to provide tax incentives to those organizations or individuals that purchase
       development rights.

Transfer of Development Rights A similar approach to farmland preservation is called a transfer of
development rights (TDR). In a TDR, the development rights on one parcel of land are transferred to
another parcel.42 The most common scenario for this practice involves a transfer of rights between a parcel
of farmland that is located in a portion of a county that is somewhat far from a municipality, and a parcel of
land that is closer to the municipality but is not viable farmland. Transferring the development rights from
the farmland to the other parcel allows the second parcel to be developed more densely than zoning laws
would otherwise allow while preserving the farmland parcel from future development.43 This action has
two sprawl-controlling benefits: it preserves the farmland further away from municipal services while
reducing the need for outward growth by allowing more dense development of urban and suburban areas.

New Jersey passed a State Transfer of Development Rights Act, which both authorized local TDR
programs and empowered the State TDR Bank Board to provide planning assistance grants to
municipalities.44 With regard to TDRs, state food policy councils should follow New Jersey’s lead and:
   Advocate for legislation explicitly authorizing local governments to enact TDR programs.
   Encourage state government to provide grants or other funding for these programs.

Donation of Conservation Easements Farmers also have the option of donating agricultural
conservation easements, rather than selling or transferring them. The process is similar to the PDR
process—farmers give up development rights to their farmland to the government or a conservation non-
profit—except in return, they receive tax benefits rather than cash compensation.45

Donating agricultural conservation easements gives farmers federal income tax benefits, since such
donations count as a charitable gift under the Internal Revenue Code.46 States can also encourage donations
by enacting state income tax benefits to incentivize such donations.47 Most states offer state tax deductions
for donations, and some states (at least fifteen, including California and South Carolina)48 offer tax
credits. In addition, many states lower the property tax rates on land where farmers have donated



41
   Id.
42
   Fact Sheet: Transfer of Development Rights, AM. FARMLAND TRUST: FARMLAND INFO. CTR. (April 2008),
http://www.farmlandinfo.org/documents/37001/TDR_04-2008.pdf.
43
   Id.
44
   N.J. STAT. ANN. §§ 40:55D-137 – 40:55D-163, 4:1C-52 (West 2012); see also Fact Sheet: Transfer of Development Rights, AM. FARMLAND
TRUST: FARMLAND INFO. CTR. 5 (April 2008), http://www.farmlandinfo.org/documents/37001/TDR_04-2008.pdf.
45
   See Fact Sheet: Agricultural Conservation Easements, AM. FARMLAND TRUST: FARMLAND INFO. CTR. (Dec. 2010)
http://www.farmlandinfo.org/documents/27762/ACE_01-2011_.pdf.
46
   See id.
47
   See id.
48
   State and Local Tax Incentives, LAND TRUST ALLIANCE, http://www.landtrustalliance.org/policy/tax-matters/campaigns/state-tax-incentives
(last visited Sept. 30, 2012); Christen Linke Young, Conservation Easement Tax Credits in Environmental Federalism, YALE LAW JOURNAL ONLINE
(Mar. 2008), http://yalelawjournal.org/the-yale-law-journal-pocket-part/legislation/conservation-easement-tax-credits-in-environmental-
federalism/.


                                                                                                                Land Use & Planning | 34
conservation easements, acknowledging the reduced value of the land when development is restricted. 49
Florida goes so far as to exempt permanently protected land from up to 100% of state property taxes.50

Food policy councils can encourage farmers to donate conservation easements on their land by encouraging
the state to provide tax incentives to farmers who donate their development rights. Conservation easements
are a useful tool for preserving farmland, and providing tax incentives to farmers may encourage more
farmers to place a conservation easement on their land.

Sale of Entire Property to the State Department of Agriculture Conservation
easements are one way to preserve farmland through limitations on future land use. Several states have
enacted other innovative policies to restrict future land use and protect farmland. For example, one portion
of New Jersey’s Farm Preservation Program allows a farmer to sell his or her entire property to the
state.51 In this situation, the farm owner decides he or she no longer wishes to farm the land. Rather than
sell it to a private entity that may or may not continue to use it as farmland, the farmer can sell the land at
fair-market value to the state Department of Agriculture instead.52 The Department then auctions the land
to a third party buyer with an agricultural deed restriction (like a conservation easement) attached, ensuring
the land continues to be used for agricultural purposes.53

The sale of entire property option has the benefit of preserving farmland, providing the selling farm owner
with full fair market value for his or her property, and providing the third-party buyer with a reduced price
for the land because it can only be used for agricultural purposes.54 However, such a program can be
expensive because the state buys land at market value and resells it at a low cost with a deed restriction.

State food policy councils should:
   Advocate for their state to adopt a sale of property program similar to the one included in New
       Jersey’s Farm Preservation Program.
   Encourage their state to set aside funding in order to purchase such land, for example by establishing
       a fund or seeking bond funding to cover these costs.

Eight-Year Preservation Program A less comprehensive and less expensive option for restricting
future use of land, also part of New Jersey’s Farm Preservation Program, is what is known as an ―eight-
year preservation program.‖ This program is similar to a donation of a conservation easement but is time-
limited. A farm owner can voluntarily place a restriction on the non-agricultural development of his or her
land for a period of eight years.55 The farmer receives no compensation for this public service, but in
exchange for making this restriction, the farmer can apply to the state of New Jersey for cost-sharing grants


49
   See Fact Sheet: Agricultural Conservation Easements, AM. FARMLAND TRUST: FARMLAND INFO. CTR. (Dec. 2010)
http://www.farmlandinfo.org/documents/27762/ACE_01-2011_.pdf.
50
   See Fact Sheet: Agricultural Conservation Easements, AM. FARMLAND TRUST: FARMLAND INFO. CTR. (Dec. 2010)
http://www.farmlandinfo.org/documents/27762/ACE_01-2011_.pdf; see also Fact Sheet: Agricultural Conservation Easements, FARMLAND INFO.
CTR. (2004), http://www.farmlandinfo.org/documents/27762/ACE_1-04.pdf.
51
   Farmland Preservation Overview, STATE OF N.J. DEP’T OF AGRIC., http://www.nj.gov/agriculture/sadc/farmpreserve/ (last visited Sept. 27,
2012).
52
   Id.
53
   Id.
54
   Id.
55
   Farmland Preservation Program: Eight-Year Preservation, N.J. STATE AGRIC. DEV. COMM.,
http://www.nj.gov/agriculture/sadc/farmpreserve/programs/eightyearprogram.pdf (last visited Sept. 30, 2012).


                                                                                                               Land Use & Planning | 35
to help with up to fifty percent of the cost of any soil or water conservation projects. 56 Program participants
also receive non-monetary benefits in the form of greater protection against: nuisance complaints (when
neighbors try to stop farmers from using their land in noisy or smelly ways, for example); zoning law
changes (which change the purposes for which land can legally be used); emergency fuel and water
rationing; and eminent domain actions (which give the government the right to seize private land for public
use after paying reasonable compensation for the land).57 New Jersey administers this program in
conjunction with municipalities and county governments.58

State food policy councils should push their state to adopt an eight-year (or similarly time-limited, say, ten-
year) preservation program. This policy alone does not cost the state any money. However, state food
policy councils can further advocate that the state provide funding for cost-sharing grants as an incentive for
program participation as well as a method to encourage farmers to improve their use of the land, as
illustrated by the New Jersey example.

OTHER FARMLAND PRESERVATION TECHNIQUES                                  Conservation easements, property
sales, and time-limited restrictions on land use encompass just one category of the methods by which states
can preserve farmland. Several states have enacted other types of land use policies that benefit food
production, including strengthening right to farm laws to protect agricultural operations from encroaching
cities, facilitating the transfer of land from experienced farmers to beginning farmers, and implementing
farm mitigation laws and policies. For more information on other methods state food policy councils can
advocate for when seeking to preserve farmland, see American Farmland Trust’s Fact Sheet: The Farmland
Protection Toolbox.59

Right to Farm Laws As businesses and residences edge closer to farms, the farms’ new neighbors may
not love living near all the sights, sounds, and smells that go along with agriculture. States can pass
appropriate ―right to farm‖ laws designed to shield farmers from potential nuisance suits that might arise
from their normal farming activities, which become problematic when they are near residential
developments.60 Right to farm laws exist in some form in all 50 states and provide a range of protections to
different agricultural operations.61 Some only protect farms that were established before neighbors moved
in. Others protect farmers more generally if they follow certain agricultural and management practices as
well as federal and state laws. Still others prevent the enactment of any ordinances imposing unreasonable
restrictions on agriculture.62

Because of the wide range of the content of right to farm laws, there is a lot of room for state food policy
councils to advocate for laws that will best help their states to preserve farmland while ensuring that bad


56
   Id.
57
   Id.
58
   Id.
59
   Fact Sheet: The Farmland Preservation Toolbox, AM. FARMLAND TRUST, http://www.farmlandinfo.org/documents/27761/fp_toolbox_02-
2008.pdf (last visited Nov. 7, 2012).
60
   See Fact Sheet: Right to Farm Laws, AM. FARMLAND TRUST: FARMLAND INFO. CTR. (Sept. 1998),
http://www.farmland.org/programs/states/wa/documents/APPENDIXI-Righttofarmlaws.pdf. See e.g., WASH. REV. CODE § 7.48.300-
48.310 (2012).
61
   Elizabeth R. Springsteen, States’ Right to Farm Statutes, NAT’L AGLAW CTR. RESEARCH PUBLICATION,
http://www.nationalaglawcenter.org/assets/righttofarm/ (last visited Nov. 4, 2012) (provides a database of states’ right to farm laws).
62
   Fact Sheet: The Farmland Protection Toolbox, AM. FARMLAND TRUST: FARMLAND INFO. CTR. 5 (Feb. 2008),
http://www.farmlandinfo.org/documents/27761/fp_toolbox_02-2008.pdf


                                                                                                                Land Use & Planning | 36
actors are not allowed to harm the health of nearby
citizens. State food policy councils can use ―right to farm‖
                                                                                        RIGHT TO FARM AND CAFOS
laws to preserve farmland by:
   Pushing the state to broadly define the right to                          ―Right to farm‖ laws were, in most cases,
                                                                              originally intended to protect small family farms
       farm to include a wide range of agricultural and
                                                                              when individuals moved away from cities and
       agriculture-related activities conducted on any day                    found themselves confronted with smelly new
       or at any time.63                                                      agricultural neighbors. But, as large industrial
    Encouraging the state legislature to redefine the                        farms like concentrated animal feeding
       right to farm laws to include only those types of                      operations (―CAFOs‖) became more common,
       farms the state wishes to protect (such as urban                       the definition of ―normal operations‖ of farms
       agriculture, specialty crop production, backyard                       changed significantly. Today, right to farm laws
       farming, etc.). This can be done by setting a                          sometimes have the effect of shielding CAFOs
                                                                              and industrial farms from accountability for
       maximum size for farms protected by the laws, by
                                                                              their considerable environmental destruction
       explicitly excluding environmentally unsustainable                     and negative local health impacts. Food policy
       operations (such as CAFOs) from their protection,                      councils should help reevaluate these laws to
       or by creating a legal definition of ―family farm‖ as                  ensure that polluting farms are not receiving the
       opposed to ―industrial farm‖ and applying the laws                     same protections as their smaller, less
       only to family farms.                                                  destructive counterparts, which the laws were
                                                                              originally intended to protect.
Agricultural District Programs Another                                        Source: Issue: CAFO Zoning, State Envt’l Resource Ctr.
system a state can employ to protect farmland is called an (2004), http://www.serconline.org/cafoZoning.html.
agricultural district program. First utilized in California
in 1965, this state-authorized program allows city or county governments to designate areas as ―agricultural
preserves‖ on which agricultural activity is encouraged and protected.64 Individual landowners within those
preserves can contract with their city or county to declare their land an agricultural preserve or farmland
security zone, which restricts the activities permitted on the land to agricultural uses.65 In return, these
landowners receive a set of benefits that vary by state.66 For example, in California, farmers receive
significant property tax relief.67 According to the USDA, as of 2001, sixteen states had such programs.68
These programs are generally authorized by state legislatures and implemented by local governments.69 The
advantage of agricultural preserves is that they grant tax benefits (especially with respect to property taxes)
and prevent local governments from passing laws adverse to farming.70 In addition, these programs are
voluntary for farmers and they allow sufficient flexibility to meet local needs and objectives. State food
policy councils should:

63
   State Agriculture Development Committee Model Right to Farm Ordinance, N.J. DEP’T OF AGRIC., available at
http://www.nj.gov/agriculture/sadc/rtfprogram/resources/modelrtfordinance.pdf.
64
   Williamson Act, CAL. GOV’T CODE §§ 51200–51297.4, 51201(d), 51230 (West 2012). See also Environmental & Resource Economics: National,
State and Local Land Preservation Programs, U.S. DEP’T OF AGRIC. NAT’L INST. OF FOOD & AGRIC. (2011),
http://www.csrees.usda.gov/nea/nre/in_focus/ere_if_preserve_programs.html. See also Fact Sheet: Agricultural District Programs, AM.
FARMLAND TRUST: FARMLAND INFO. CTR. (Jan. 2004), http://www.farmlandinfo.org/documents/37067/ag_districts_05-2008.pdf.
65
   CAL. GOV’T CODE §§ 51201(d), 51240, 51243, 51296.1 (West 2012).
66
   Fact Sheet: Agricultural District Programs, AM. FARMLAND TRUST: FARMLAND INFO. CTR. (Jan. 2004),
http://www.farmlandinfo.org/documents/37067/ag_districts_05-2008.pdf.
67
   CAL. GOV’T CODE § 51296.2 (West 2012).
68
  Environmental & Resource Economics: National, State and Local Land Preservation Programs, U.S. DEP’T OF AGRIC. NAT’L INST. OF FOOD &
AGRIC. (2011), http://www.csrees.usda.gov/nea/nre/in_focus/ere_if_preserve_programs.html.
69
   Fact Sheet: Agricultural District Programs, AM. FARMLAND TRUST: FARMLAND INFO. CTR. (Jan. 2004),
http://www.farmlandinfo.org/documents/37067/ag_districts_05-2008.pdf.
70
   Id.


                                                                                                               Land Use & Planning | 37
      Advocate that their state create an agricultural district program.
      Encourage the state to implement tax incentives or other benefits to encourage participation.
      Push the state to make the enrollment process streamlined and straightforward.

Farmland Mitigation Laws and Policies States may want to look at farmland mitigation laws
and policies as another way to counterbalance the conversion of farmland by requiring permanent
protection of ―comparable‖ agricultural land in exchange.71 Connecticut, for example, requires all
municipalities, towns, boroughs, cities, and districts to mitigate the conversion of active agricultural land
taken by eminent domain.72 In certain situations governments have the right to seize private land for public
use after paying reasonable compensation for the land. Such a taking of private land is called eminent domain.
Local governments are required to mitigate these farmland conversions, either by buying an agricultural
conservation easement on similar land in their jurisdiction or else paying a mitigation fee to the state
farmland protection program to protect comparable land elsewhere in the state, subject to approval by both
the state farmland preservation program and the state commissioner of agriculture.73 Farmland mitigation
laws help ensure that even where farmland conversion is necessary in one area, the negative effects are at
least partially alleviated by the permanent protection of agricultural land elsewhere in the state.

State-level Oversight of Conversion of Agricultural Land As another policy tool to
preserve land for farming, it may be helpful for states to establish a task force to investigate farmland
conversion that may be occurring in the state and recommend possible solutions.74 States can help ensure
broad oversight of this issue at the state level by establishing a lead agency that reviews other state agency
activities that may result in farm land conversion.75 These high-level options have the advantage of taking
into account the overall big picture of the conversion of farmland that is occurring in the state. State food
policy councils can push for designation of a single agency to take on this process, or for the creation of an
inter-agency task force that will bring together all relevant agencies to discuss policies that are leading to
loss of farmland and identify tailored, state-specific solutions.

Programs Linking Young Farmers with Experienced Farmers Programs linking young
farmers with experienced farmers not only provide mentorship and farming education for new farmers, but
may also lead to access to or the transfer of productive farmlands to a new generation of farmers. These
linking or mentoring programs can be short- or long-term, formal or informal, can occur on or off the
farm, and can lead to agreements through which younger farmers buy or inherit land from experienced
farmers after extensive mentoring, as with so-called land transition programs.76

As the average age of farmers continues to climb and barriers to entering the agricultural market continue
to increase, these kinds of farmer mentorship programs are invaluable to ensure that farming knowledge
and land are passed on to new farmers. In 1970 the average age of a farmer was 50.77 As of 2007, it was 57,


71
   Fact Sheet: The Farmland Preservation Toolbox, AM. FARMLAND TRUST 5, http://www.farmlandinfo.org/documents/27761/fp_toolbox_02-
2008.pdf (last visited Nov. 8, 2012).
72
   Id.
73
   Id.
74
   Id. at 3.
75
   Id.
76
   Megan Mills-Novoa, Sustaining Family Farming Through Mentoring: A Toolkit for National Family Farm Coalition Members, NAT’L FAMILY FARM
COAL. 12–13 (Jan. 2011), http://www.nffc.net/Issues/Local%20Food/NFFC_Mentoring_Report2011.final.pdf.
77
   Id. at 6.


                                                                                                                 Land Use & Planning | 38
                                                         with 25% of farmers over age 65.78 In contrast, only 10% of total
       INCENTIVIZING PARTICIPATION IN                    agricultural production comes from beginning farmers, defined as
       FARMER MENTORING PROGRAMS                         those who have operated a farm or ranch for ten years or less.79
     Though farmer mentoring programs                    Programs that facilitate and coordinate mentoring for young
     have great benefits for inspiring and
                                                         farmers attempt to address these issues by making it easier for
     training a new generation of farmers,
     one of the primary challenges to such               young farmers to enter the agricultural field and by increasing the
     programs stems from the difficulty in               likelihood that productive farmland passes to willing young
     incentivizing experienced farmers, who              farmers.80 Food policy councils looking to encourage young
     are short on time, money, and energy,               farmers to enter the market should:81
     to participate.                                         Research which organizations already exist in the state that
     One solution, used by Midwest                       match young farmers with more experienced mentors and help
     Organic and Sustainable Education                   increase access to these programs.
     Service, is to provide mentors with a                   Encourage the state to fund existing matching programs in
     stipend, which has the simultaneous
                                                         the state or to provide funding to create new programs in
     benefits of making mentees feel more
     comfortable asking for guidance (since              underserved areas.
     the mentor is being paid), making clear                 Work with stakeholders to create mentorship programs
     the value of the mentor’s time, and                 where they are currently lacking, with the aim of offering
     increasing mentor accountability.                   farmers a range of options near them, including online linkages
     Source: Megan Mills-Novoa, Sustaining Family        where feasible and appropriate.
     Farming Through Mentoring: A Toolkit for National
     Family Farm Coalition Members, NAT’L FAMILY
     FARM COAL. 2 (Jan. 2011),
                                             Related to mentoring programs are farm viability programs that
                                             provide technical assistance and sometimes small grants to help
     http://www.nffc.net/Issues/Local%20Food/N
     FFC_Mentoring_Report2011.final.pdf      farmers improve their profitability.82 Under these programs,
                                             which are generally administered by state departments of
                                             agriculture or non-profit organizations, experts consult with
farmers to assess their current operations and devise individualized plans for the future. Areas of
consultation may include better management of existing resources, changing marketing techniques, or
altering the products a farm raises and sells.83

CONCLUSION          The United States is losing farmland at an alarmingly fast rate.84 Between 1982 and
2007, more than 23 million acres of farmland were lost to development.85 Because having productive
agricultural land is inseparable from our country’s ability to produce food, it is critical that state and
localities work to preserve farmland. Whatever mix of strategies advocates and state legislatures prefer, any
action to preserve farmland is an action to maintain sources of local food available to the state. 86

78
   Id.
79
   Id. at 7.
80
   Id. at 2.
81
   See id.
82
   Fact Sheet: The Farmland Preservation Toolbox, AM. FARMLAND TRUST 4, http://www.farmlandinfo.org/documents/27761/fp_toolbox_02-
2008.pdf (last visited Nov. 8, 2012).
83
   Id.
84
   Farmland by the Numbers, AM. FARMLAND TRUST, http://www.farmland.org/programs/protection/American-Farmland-Trust-Farmland-
Protection-Farmland-by-the-numbers.asp (last visited Oct. 11, 2012).
85
   Id.
86
   For additional ways states can work to preserve farmland, see generally Fact Sheet: The Farmland Protection Toolbox, AM. FARMLAND TRUST:
FARMLAND INFO. CTR. 5 (Feb. 2008), http://www.farmlandinfo.org/documents/27761/fp_toolbox_02-2008.pdf.


                                                                                                                  Land Use & Planning | 39
SECTION IV: FOOD ASSISTANCE PROGRAMS
The phrase “food assistance programs” is used to describe a set of federally-funded programs designed to help low-income Americans
access food. The largest of these programs is the Supplemental Nutrition Assistance Program (SNAP), formerly known as food stamps,
a program that currently reaches over 45 million Americans each month. Though these programs are federally-funded, states are
responsible for regulating and administering food assistance programs to varying degrees at the state level. There are, therefore,
significant opportunities to influence the administration of these programs within each state.

OVERVIEW         ―Food assistance programs" refer to federally-funded programs that provide food and
nutrition education to low-income Americans. This section focuses on the largest federal food assistance
programs, which are the Supplemental Nutrition Assistance Program (SNAP) and the Special Supplemental
Nutrition Program for Women, Infants, and Children (WIC). Other federal food assistance programs,
some of which are discussed in this Toolkit, include: school meal programs (National School Lunch and
Breakfast Programs, Fresh Fruit & Vegetable Program, and Special Milk Program), the Summer Food
Service Program, the Child and Adult Care Food Program, Food Assistance for Disaster Relief, and various
food distribution programs (Schools/Child Nutrition Commodity Programs, Food Distribution on Indian
Reservations, Commodity Supplemental Food Program, and the Emergency Food Assistance Program).1
Food policy councils can play a significant role in improving consumer access to healthy foods by ensuring
that all those who are eligible for these federal programs are enrolled and able to participate in them. There
are numerous opportunities for food policy councils to influence the shape, size, and scope of these food
assistance programs on a state level.
1. SNAP Food policy councils should aim to eliminate the barriers that prevent SNAP-eligible individuals
from enrolling in the program. This includes working with state agencies to increase the amount of eligible
recipients that sign up for benefits and identify methods to fund healthy food programming.
2. WIC State food policy councils can work with state governments to increase participation in WIC by
working to remove barriers to participation and increasing the amount of outreach to WIC-eligible women
and children.
3. Maximizing Food Assistance Program Use to Benefit the Local Food
Economy Food policy councils can achieve two goals—contributing to their state’s economy and
increasing the consumption of healthy foods by WIC and SNAP recipients—by pushing for increased
funding for the WIC and Senior Farmers Market Nutrition Programs (WIC FMNP and S-FMNP,
respectively) and fostering increased SNAP use at farmers markets.

SNAP SNAP, formerly known as the federal food stamp program, is the largest food assistance program
in the nation. As of July 2012, more than 45 million people, or about 15% of the U.S. population, were
enrolled in SNAP.2 Although SNAP is a federally-funded program, the federal government splits the costs
and responsibilities of administering the program with states.3 This division of funding and administrative
duties presents food policy councils with the opportunity to foster state policy changes that can influence
the state’s implementation of SNAP and increase access to healthy foods for those who would not otherwise
be able to afford them.
1
  Nutrition Assistance Programs, U.S. DEP’T OF AGRIC., FOOD & NUTRITION SERV., http://www.fns.usda.gov/fns/ (last visited Nov. 6, 2012).
2
  SNAP/Food Stamp Participation: SNAP Participation Inched Up Slightly in July 2012, FOOD RESEARCH AND ACTION CENTER
http://frac.org/reports-and-resources/snapfood-stamp-monthly-participation-data/#2jul (last visited Oct. 29, 2012).
3
  Building a Healthy America: A Profile of the Supplemental Nutrition Assistance Program, U.S. DEP’T OF AGRIC., FOOD & NUTRITION SERV. 2 (April
2012), http://www.fns.usda.gov/ORA/menu/Published/SNAP/FILES/Other/BuildingHealthyAmerica.pdf.




                                                                                                                Food Assistance Programs | 40
The federal government focuses on the ―big picture‖ of
                                                                        Economic Benefits of SNAP
SNAP, setting basic eligibility requirements for the
program. The major parts of the program for which Increasing SNAP participation in a state
the federal government sets regulations include:             increases the number of dollars invested in the
   Program Eligibility: The primary test for local economy. USDA estimates that for every
      eligibility is based on one’s income. To qualify, $5 spent in SNAP benefits, $9.20 in overall
      households must have gross monthly income less economic activity is generated.
      than 130% and net monthly income less than Source: Supplemental Nutrition Assistance Program: Putting
                                                                          Within Reach, State
      100% of the federal poverty level, and assets Healthy FoodsOOD & NUTRITION SOutreach Toolkit, U.S. DEP’T
                                                             OF AGRIC., F                     ERV. 1 (May 2011),
                                   4
      totaling less than $2,000. Expenses like shelter http://www.fns.usda.gov/snap/outreach/pdfs/toolkit/2011
      and health care are deducted from applicants’ /State/toolkit_Complete.pdf.
      incomes for the purpose of determining
      eligibility, while income from Supplementary Security Income (SSI) is not counted at all, making it
      easier for applicants to qualify for the program and receive the other benefits that they need.5
   Categorical Exclusions: Under federal rules, certain people are automatically ineligible for SNAP,
      including: people on strike, undocumented immigrants, certain legal immigrants, and certain
      convicted felons.6 Under federal rules, convicted drug felons are ineligible for federal SNAP benefits,
      but states have the discretion to opt out of this federal categorical exemption and decide their own
      eligibility rules for these individuals.7
   Application Standards: The federal government sets national standards for application filing and
       processing that states administering the program must meet.8
   Vendor Qualifications: The federal government (via USDA) controls which retailers may accept
      SNAP benefits and sets the standards for qualifying as a SNAP vendor.9 To qualify as a vendor, a store
      must either ―(1) stock and sell food for home preparation and consumption in all four categories of
      staple foods . . . or (2) obtain more than 50 % of gross total sales from the sale of one or more staple
      food categories.‖10 Staple foods are defined as breads, dairy, fruits and vegetables, and protein (meat,
      fish or poultry).11 Stores or farmers markets apply directly to the USDA for approval and must accept
      payment by Electronic Benefit Transfer (EBT).12 EBT allows benefit recipients to use a debit-like card



4
  Id. Households may have $3250 in accountable resources if at least one member of their household is 60 years of age or over or disabled.
5
  Id.
6
  A Quick Guide to Food Stamp Eligibility and Benefits, CTR. ON BUDGET & POLICY PRIORITIES,
http://www.cbpp.org/cms/index.cfm?fa=view&id=1269 (last visited Oct. 13, 2012).
7
  Supplemental Nutrition Assistance Program State Options Report, U.S. DEP’T OF AGRIC., FOOD & NUTRITION SERV. (2011),
http://www.fns.usda.gov/snap/rules/Memo/Support/State_Options/9-State_Options.pdf.
8
  Building a Healthy America: A Profile of the Supplemental Nutrition Assistance Program, U.S. DEP’T OF AGRIC., FOOD & NUTRITION SERV. 2 (April
2012), http://www.fns.usda.gov/ORA/menu/Published/SNAP/FILES/Other/BuildingHealthyAmerica.pdf.
9
  Id.; Apply Online to Become Authorized to Accept SNAP at your Retail Food Store or Farmers Market, U.S. DEP’T OF AGRIC., FOOD & NUTRITION SERV.,
http://www.fns.usda.gov/snap/retailers/application-process.htm (last visited Oct. 11, 2012).
10
   Building a Healthy America: A Profile of the Supplemental Nutrition Assistance Program, U.S. DEP’T OF AGRIC., FOOD & NUTRITION SERV. 34 (April
2012), http://www.fns.usda.gov/ORA/menu/Published/SNAP/FILES/Other/BuildingHealthyAmerica.pdf.
11
   Id.
12
   Supplemental Nutrition Assistance Program: Retailers, U.S. DEP’T OF AGRIC., FOOD & NUTRITION SERV.,
http://www.fns.usda.gov/snap/retailers/merchants.htm (last visited Oct. 11, 2012); Apply Online to Become Authorized to Accept SNAP at your
Retail Food Store or Farmers Market, U.S. DEP’T OF AGRIC., FOOD & NUTRITION SERV., http://www.fns.usda.gov/snap/retailers/application-
process.htm (last visited Oct. 11, 2012).




                                                                                                                Food Assistance Programs | 41
                                                                  to conduct their transactions and automatically receive
                                                                  their monthly benefits.13 EBT is now the only method by
               ONLINE SNAP APPLICATIONS                           which SNAP benefits can be used (as of June 17, 2009).14
     Kansas is one of 30 states that have                            Eligible Food Items: The federal government
     implemented an online application for SNAP                   also decides what food items may be purchased using
     benefits, as well as other services such as                  SNAP benefits.15 A SNAP beneficiary may purchase basic
     Medicaid and TANF. This streamlined                          food items (such as bread, fruits, vegetables, etc.) as well
     application process provides applicants with an
                                                                  as seeds and plants that will grow food for home
     eligibility quiz to determine if they qualify for
     benefits. Applicants can have their cases                    consumption.16 SNAP benefits may not be used for
     reviewed as early as the next business day.                  purchasing alcohol, tobacco products, hot prepared food,
     Having an online application process eliminates              food to be eaten in the store, non-food items, and
     the access problem for many disabled, elderly,               vitamins and supplements.17
     or working households who cannot come into
     SNAP offices with ease, making SNAP a more                   Everything states do with regard to SNAP must conform
     accessible program and ensuring that those who               to these broad federal rules and regulations. Therefore,
     are eligible to utilize the program are able to              councils should focus their energies on affecting the state
     do so.                                                       level policies and programs over which state officials do
     Source: Kansas Food Assistance Program, KAN. DEP’T FOR       have control, such as conducting SNAP outreach,
     FAMILIES AND CHILDREN, ECONOMIC AND EMPLOYMENT               distributing and collecting SNAP applications, certifying
     SERV.,
     http://content.dcf.ks.gov/EES/KEESM/forms/ES-                that households are eligible for benefits, and distributing
     2007_food_asst_brochure.pdf (last visited Oct. 13,           benefit funds.18 As long as states conform to the broad
     2012).                                                       federal guidelines for application filing and processing,
                                                                  they can set up the system however they choose.

One of the largest hurdles facing state SNAP programs is getting eligible individuals to participate in the
program. Nationwide approximately 30% of people eligible for SNAP do not participate in the program.19
This rate is even higher in some states. According to USDA, in some states 47% of SNAP-eligible
individuals and households are not enrolled.20 A 2008 report from the Food Research & Action Center
found a number of barriers to SNAP participation among eligible individuals, including stigma,
inconvenience of traveling to and from the food stamp offices (including limited office hours, lengthy
waiting periods, and costs associated with the travel), inadequate caseworker to applicant ratios, and
challenges with the required paperwork.21

13
   Supplemental Nutrition Assistance Program: Retailers, U.S. DEP’T OF AGRIC., FOOD & NUTRITION SERV.,
http://www.fns.usda.gov/snap/retailers/merchants.htm (last visited Oct. 11, 2012).
14
   Building a Healthy America: A Profile of the Supplemental Nutrition Assistance Program, U.S. DEP’T OF AGRIC., FOOD & NUTRITION SERV. 33 (April
2012), http://www.fns.usda.gov/ORA/menu/Published/SNAP/FILES/Other/BuildingHealthyAmerica.pdf.
15
   7 C.F.R. § 271.2 (2012) (definition of ―eligible food‖); Eligible Food Items, U.S. DEP’T OF AGRIC., FOOD & NUTRITION SERV.,
http://www.fns.usda.gov/snap/retailers/eligible.htm (last visited Nov. 5, 2012).
16
   7 C.F.R. § 271.2 (2012) (definition of ―eligible food‖).
17
   Eligible Food Items, U.S. DEP’T OF AGRIC., FOOD & NUTRITION SERV., http://www.fns.usda.gov/snap/retailers/eligible.htm (last visited Nov.
5, 2012).
18
   Building a Healthy America: A Profile of the Supplemental Nutrition Assistance Program, U.S. DEP’T OF AGRIC., FOOD & NUTRITION SERV. 2 (April
2012), http://www.fns.usda.gov/ORA/menu/Published/SNAP/FILES/Other/BuildingHealthyAmerica.pdf.
19
   FOOD RESEARCH & ACTION CTR., A REVIEW OF STRATEGIES TO BOLSTER SNAP’S ROLE IN IMPROVING NUTRITION AS WELL AS FOOD SECURITY 7
(Feb. 2012), http://frac.org/wp-content/uploads/2011/06/SNAPstrategies.pdf.
20
   Reaching Those in Need: State Supplemental Nutrition Assistance Program Participation Rates in 2009, U.S. DEP’T OF AGRIC., FOOD & NUTRITION
SERV. (Dec. 2011), http://www.fns.usda.gov/ora/menu/Published/snap/FILES/Participation/Reaching2009Summary.pdf.
21
   FOOD RESEARCH & ACTION CTR., ACCESS AND ACCESS BARRIERS TO GETTING FOOD STAMPS: A REVIEW OF THE LITERATURE 1, 22, 27, 37, 44
(2008), available at http://frac.org/newsite/wp-content/uploads/2009/09/fspaccess.pdf.




                                                                                                              Food Assistance Programs | 42
                                                                  In order to reduce the barriers and increase
                        SNAP-ED
                                                                  participation in SNAP, state food policy councils can
     SNAP-Ed, the Nutrition Education and Obesity                 advocate that their state:
     Prevention Grant Program, provides funding to
                                                                     Eliminate or raise the asset test imposed by the
     states to create nutritional education programs
     and activities that increase healthy eating habits           federal guidelines, which many states have done.22 The
     and promote a physically active lifestyle for                federal rule is that those meeting the income
     SNAP participants. Grant funding for SNAP-Ed                 requirements and having assets worth less than $2,000
     programs is based on a state’s expenditures on               are eligible for SNAP; it does not preclude a state from
     SNAP-Ed activities in the past as well as a state’s          giving benefits to those who meet the income
     share of SNAP participation. The formula for                 requirements but whose assets exceed $2,000 because
     calculating grant funding is changing and will be            of their collection of other benefit programs, such as
     based more on your state’s SNAP participation                Temporary Assistance for Needy Families (TANF).23
     rates, which gives states an incentive to increase           Although more than two-thirds of the states have
     SNAP participation. State food policy councils               eliminated or increased the asset test, Alaska, Montana,
     should advocate that their state work to increase
                                                                  Wyoming, Utah, South Dakota, Kansas, Arkansas,
     SNAP participation and apply for funds to
     implement nutrition education activities.                    Indiana, Tennessee, and Virginia still operate under the
                                                                  lower federal asset test guidelines.24
     Sources: Supplemental Nutrition Assistance Program Education
     (SNAP-Ed) Facts, U.S. Dep’t of Agric., Nat’l Agric. Library,    Institute measures such as broad-based categorical
     http://www.nal.usda.gov/snap/SNAP-                           eligibility (BBCE), which creates an automatic
     EdFactsheet2012.pdf (last visited Nov. 5, 2012); U.S. DEP’T
     OF AGRIC., FOOD & NUTRITION SERV., SUPPLEMENTAL
                                                                  qualification for SNAP benefits for households who
     NUTRITION ASSISTANCE PROGRAM EDUCATION GUIDE,                receive TANF.25 This helps to simplify the application
     NUTRITION EDUCATION AND OBESITY PREVENTION GRANT             process and ensure that more eligible individuals and
     PROGRAM3 (2012),
     http://www.nal.usda.gov/fsn/Guidance/FY2013SNAP-
                                                                  families will be enrolled in SNAP. Although 43 states
     EdPlanGuidance.pdf.                                          have implemented BBCE, the income tests for TANF
                                                                  eligibility varies.26 For example, the gross income limit
                                                                  for TANF eligibility in Alabama is at 130% of the
           federal poverty guidelines, whereas in Florida the gross income limit is at 200% of the federal
           poverty guidelines.27 State food policy councils should advocate that their states both increase their
           TANF gross income limit to 200% of the federal poverty guidelines and implement BBCE.28
      Push the state to implement policies that ensure that potential beneficiaries are aware of their
           eligibility and that the SNAP offices are able to accommodate any and all eligible citizens. This can be
           done by engaging in outreach campaigns to educate the public about the eligibility criteria and
           available benefits, guaranteeing that SNAP application processing offices are fully staffed, extending



22
   A Quick Guide to Food Stamp Eligibility and Benefits, CTR. ON BUDGET & POLICY PRIORITIES,
http://www.cbpp.org/cms/index.cfm?fa=view&id=1269 (footnote 4) (last visited Oct. 11, 2012).
23
   Id.
24
   Expanding Access to SNAP, FOOD RESEARCH & ACTION CTR., http://frac.org/newsite/wp-
content/uploads/2009/05/map_eliminating_asset_test.pdf (last visited Nov. 5, 2012).
25
   7 C.F.R. § 273.2(j)(2) (2012).
26
   Broad Based Categorical Eligibility, U.S. DEP’T OF AGRIC., FOOD & NUTRITION SERV., http://www.fns.usda.gov/snap/rules/Memo/BBCE.pdf
(last visited Nov. 5, 2012).
27
   Id.
28
   Id.




                                                                                                      Food Assistance Programs | 43
       office hours to accommodate working families, providing child care areas in waiting rooms,
       streamlining the eligibility and application processes, and utilizing shorter and clearer applications.29
      Advocate for the state to remove bureaucratic hurdles in the application process, for example, by
       creating multiple ways for participants to enroll in the program. States should allow applications to be
       submitted online or via fax or mail rather than requiring applicants to visit in person at a state SNAP
       office.30 Currently, over two-thirds of states allow eligible individuals to apply for SNAP benefits
       online (although not all counties within those states use
       online applications).31
      Advocate that the state allow recertification interviews to             STATE DISCRETION IN WIC
       be conducted off-site or over the phone. Because state States are required to report their
       authorities must interview applicants to certify their program                  administration       and
       eligibility, an eligible applicant may have to return to the implementation plans for WIC every
       local enrollment office, which may be a barrier to year, in addition to submitting funding
       accessing services.32 According to USDA’s SNAP state requests in the form of budgets.
       outreach toolkit, interviews can take place over the Though these documents must be
       phone or at locations other than the SNAP offices.33             approved by USDA Food and Nutrition
                                                                                              Service, the state is given latitude to
It is clear that increasing participation in SNAP is good for a                               determine items such as: (1) delivery of
state’s citizens and good for the state’s overall economy. Food                               WIC to homeless individuals; (2)
policy councils should advocate for policies that increase                                    acceptance of WIC at mobile stores; (3)
participation by SNAP-eligible individuals and families to make                               criteria used to determine eligibility
sure their most vulnerable citizens have access to healthy food                               (though some federal guidelines must be
while improving their state’s economy.                                                        followed), such as what qualifies as
                                                                                              income and what income can be
                                                                                              excluded from a household’s income
WIC The other major federal food assistance program is the                                    eligibility test; and (4) methods of WIC
Special Supplemental Nutrition Program for Women, Infants                                     package distribution.
and Children—more commonly known as ―WIC.‖34                                                  Source: 7 C.F.R. §§ 246.3(c), 246.4(a)(2), (6),
Approximately 8.9 million individuals utilized the WIC                                        (11)(i)(D), (14)(xiv) (2012).
program in 2011,35 and according to the USDA, 53% of all

29
   Supplemental Nutrition Assistance Program: Putting Healthy Foods Within Reach, State Outreach Toolkit, Communication Channels: Partnerships, U.S.
DEP’T OF AGRIC., FOOD & NUTRITION SERV. 1 (May 2011),
http://www.fns.usda.gov/snap/outreach/pdfs/toolkit/2011/State/toolkit_Complete.pdf; SNAP/Food Stamp Participation, FOOD RESEARCH &
ACTION CTR., http://frac.org/reports-and-resources/snapfood-stamp-monthly-participation-data/ (last visited Oct. 12, 2012). This FRAC
site tracks the number of participants in SNAP on a monthly basis and notes that ―[i]mplementing SNAP policies that improve access, ensuring
staff capacity to process applications, and mounting outreach campaigns to get the word out to the public can help communities maximize the
federal recovery dollars available to help local families and businesses.‖
30
   Policy Basics: Introduction to the Supplemental Nutritional Assistance Program, CTR. ON BUDGET & POLICY PRIORITIES,
http://www.cbpp.org/cms/index.cfm?fa=view&id=2226 (last visited Oct. 12, 2012). The CBPP also provides a handy survey of all state
SNAP websites including how accessible they are, what services are provided on them, what can be accomplished directly online, and what
resources are provided. SNAP On-Line: A Review of State Government SNAP Websites, CTR. ON BUDGET & POLICY PRIORITIES,
http://www.cbpp.org/cms/index.cfm?fa=view&id=618 (last visited Oct. 12, 2012).
31
   To Apply, Supplemental Nutrition Assistance Program, U.S. DEP’T OF AGRIC., FOOD & NUTRITION SERV.,
http://www.fns.usda.gov/snap/applicant_recipients/apply.htm (last visited Oct. 12, 2012).
32
   Supplemental Nutrition Assistance Program: Putting Healthy Foods Within Reach, State Outreach Toolkit, Basics: Introduction, U.S. DEP’T OF AGRIC.,
FOOD & NUTRITION SERV. 8 (May 2011), http://www.fns.usda.gov/snap/outreach/pdfs/toolkit/2011/State/toolkit_Complete.pdf.
33
   Id.
34
   Women, Infants, and Children, U.S. DEP’T OF AGRIC., FOOD & NUTRITION SERV., http://www.fns.usda.gov/wic/ (last visited Oct. 12, 2012).
35
   WIC Program Participation and Costs, U.S. DEP’T OF AGRIC., FOOD & NUTRITION SERV. (Sept. 28, 2012),
http://www.fns.usda.gov/pd/wisummary.htm.




                                                                                                                 Food Assistance Programs | 44
infants born in the U.S. benefit from the WIC program.36 As its name indicates, this program is narrower
than SNAP. Rather than being available for all low-income Americans, it is available exclusively to the
following specific populations:
   Pregnant women (continuing up to 6 weeks after pregnancy ends);
   Breastfeeding women (continuing through infant’s 1st
       birthday);
   Non-breastfeeding postpartum women (through 6
                                                                 SUGGESTED PLACES FOR OUTREACH
       postpartum months);
                                                              According to a focus group done as part of a
   Infants (up to 1st birthday); and/or
                                                              2001 California study, the best places to
   Children (up to 5th birthday).37                          reach WIC-eligible women depend largely
                                                                                on racial and ethnic background. States
WIC enrollment is subject to several other restrictions as                      should focus their information distribution
well. First, the family income of WIC applicants must fall                      efforts on the following (and similar) places:
at or below 185% of the federal poverty level.38 WIC                            (1) church bulletin boards; (2) public
applicants must be deemed to be at nutritional risk by a                        schools; (3) community colleges; (4) Wal-
qualified health professional.39 Finally, WIC applicants                        Mart and similar low-cost stores; (5)
                                                                                doctors’ offices; (6) supermarkets; and (7)
must be able to prove residency in the state in which they
                                                                                Hispanic media outlets (specifically to reach
apply.40                                                                        Hispanic women).
                                                            Source: Reaching the Underserved, CAL. DEP’T OF
Unlike SNAP, WIC is not an entitlement program. In other    HEALTH SERV. WIC SUPPLEMENTAL NUTRITION
words, while the SNAP program can continue to grow in       BRANCH 8–9 (2001),
size to accommodate every eligible individual, WIC has a    http://www.cdph.ca.gov/programs/wicworks/Doc
                                                            uments/NE/WIC-NE-Outreach-
set dollar amount allotted to each WIC state agency to      ReachingTheUnderserved.pdf.
utilize for administering the program within that state.41
The types of items available through WIC also differ from
SNAP: while SNAP can be used for a wide range of food items with a few exclusions, WIC provides a
specific package of foods to participants (though the package varies based on the different eligibility
categories, e.g., pregnant women versus infants).42

Similar to SNAP, there are a number of reasons eligible women do not participate in the WIC program.
Some of those barriers include stigma, lack of awareness of and information about WIC and its eligibility
requirements, inconvenient WIC office locations and hours, lack of transportation, language barriers, and a
perception of insufficient benefits.43 WIC participation also suffers from low retention rates due to women

36
   About WIC: WIC at a Glance, U.S. DEP’T OF AGRIC., FOOD & NUTRITION SERV., http://www.fns.usda.gov/wic/aboutwic/wicataglance.htm
(last visited Oct. 12, 2012).
37
   Id.
38
   WIC Fact Sheet, U.S. DEP’T OF AGRIC., FOOD & NUTRITION SERV. http://www.fns.usda.gov/wic/WIC-Fact-Sheet.pdf (last visited Oct. 29,
2012) (applicants who participate in the SNAP, Medicaid, or Temporary Assistance for Needy Families programs are automatically income
eligible so that they are not required to provide additional documentation when applying for WIC).
39
   Id.
40
   Id.
41
   About WIC: WIC at a Glance, U.S. DEP’T OF AGRIC., FOOD & NUTRITION SERV., http://www.fns.usda.gov/wic/aboutwic/wicataglance.htm
(last visited Oct. 12, 2012).
42
   WIC Food Packages, U.S. DEP’T OF AGRIC., FOOD & NUTRITION SERV., http://www.fns.usda.gov/wic/benefitsandservices/foodpkg.htm (last
visited Oct. 12, 2012).
43
   U.S. DEP’T OF AGRIC., FOOD & NUTRITION SERV., NAT’L SURVEY OF WIC PARTICIPANTS II xi–xii, 27– 32 (2012), available at
http://www.fns.usda.gov/Ora/menu/Published/WIC/FILES/NSWP-II.pdf; Barriers that Prevent Low-Income People from Gaining Access to Food




                                                                                                      Food Assistance Programs | 45
voluntarily leaving the program.44 According to one
study, two of the main reasons women give for leaving
                                                                                  FUNDING A STATE’S WIC EBT TRANSITION
the program are: (1) long waiting times when dealing
with WIC (in particular, waiting over an hour to be                           According to new USDA rules, WIC must
re-certified);45 and (2) overcrowded and noisy WIC                            transition to using EBT exclusively by 2020.
facilities, with little for their children to do.46                           Finding funds for EBT implementation can be the
                                                                              biggest challenge to states trying to initiate this
Because WIC funding is provided to states in the form                         change. However, funding sources are available to
                                                                              help a state successfully transition to EBT use.
of grants, states have more responsibility than in SNAP
                                                                              Some federal grants include:
regarding program administration and distribution of
benefits, but must still meet federal standards.47 State
food policy councils can help to improve WIC                   EBT Planning Grants: Used to assess the
participation in the state by:                                       cost of WIC EBT implementation.
   Pushing the state to provide supplemental                  EBT Implementation Grants: Used to
       funding for its WIC program. Massachusetts                    fund the technological transition needed to
       supplements the federal funding with its own                  accept WIC EBT.
       state money to ensure that all eligible individuals     Technical Innovation Grants: Used for
       can be served.48                                              a variety of projects, including the purchase
                                                                     of WIC-approved items using EBT.
   Encouraging the state to improve the provision
                                                              Source: WIC Electronic Benefits Transfer (EBT) Fiscal Year 2011
       of services, for example, by ensuring WIC              Funding Awards, U.S. DEP’T OF AGRIC., FOOD & NUTRITION
       agencies are fully staffed, by cultivating staff       SERV., http://www.fns.usda.gov/wic/ebt/grants11.htm
       members that are friendly and approachable, by         (last visited Oct. 13, 2012).
       including a staffed childcare room extending
       office hours,49 and ensuring WIC sites are in areas that are easy to access with sufficient parking and
       public transportation options.50 WIC offices should remain open on designated evenings and
       weekends, in order to increase access for working women. For example, in Duplin County, North
       Carolina, the main WIC office is open until 7pm on Mondays.51
   Pushing for the state to increase its outreach efforts using methods such as partnering with faith-based
       and other community organizations, disseminating brochures and other informational fliers, and
       getting out into the community. Brochures or other informational materials serve the dual purpose of
       informing women that they may be eligible and helping them understand what services WIC can


and Nutrition Programs, FOOD RESEARCH & ACTION CTR. 1–5 (2011), available at http://www.hungercenter.org/wp-
content/uploads/2011/07/Barriers-to-Food-and-Nutrition-Programs-FRAC.pdf.
44
   Barriers to Retention Among NYS WIC Infants and Children, N.Y. STATE DEP’T OF HEALTH DIV. OF NUTRITION EVALUATION & ANALYSIS UNIT 2–3
(2001), http://www.fns.usda.gov/ora/menu/DemoProjects/WICSPG/Reports/barriers.pdf.
45
   Id.
46
   Id.
47
   ―Steering a middle course between the problem of entitlements and the inherent vagueness of block grants, WIC is a federal program that
allows for local and state administration. This has satisfied WIC's state and local managers, allowing them to be creative within a framework of
broadly shared goals and a time-tested program structure.‖ LEIGHTON KU, DOUGLAS J. BESHAROV, & PETER GERMANIS, Debating WIC, THE PUBLIC
INTEREST (1999), available at http://www.welfareacademy.org/pubs/foodassist/debatingwic.shtml.
48
   MASS. GEN. LAWS ch. 111I § 2 (2012).
49
   Reaching the Underserved and Improving WIC Services: Executive Summary, CAL. DEP’T OF HEALTH SERV. WIC SUPPLEMENTAL NUTRITION BRANCH 15
(2001), http://www.cdph.ca.gov/programs/wicworks/Documents/NE/WIC-NE-Outreach-ReachingTheUnderserved.pdf.
50
   Id. at 11.
51
   Duplin County Health Department WIC Offices, DUPLIN COUNTY,
http://www.duplincountync.com/governmentOffices/healthServices_wic.html (last visited Oct. 13, 2012).




                                                                                                             Food Assistance Programs | 46
       provide for them.52 California sets a good example of a broad state outreach strategy for WIC. The
       state WIC authorities formed an outreach committee made up of ten local WIC stakeholders that
       meets quarterly to shape the state’s WIC outreach program.53 California disseminates information
       about WIC in multilingual brochures distributed to various community institutions, and operates an
       automated telephone hotline where people can find out things like where the nearest WIC clinic is
       located and to what WIC benefits they may be entitled.54 California also commissioned a new state
       WIC logo in order to rebrand the program and
       raise awareness.55
      Advocating for the state to transition to using EBT
       for WIC benefits as quickly as possible (rather than    EBT: MAKING WIC BENEFITS ACCESSIBLE
       paper vouchers). The use of EBT simplifies All states will be required to deliver WIC
       accessing benefits and reduces stigma attached to benefits on EBT cards by the year 2020. Many
       participation. The Healthy, Hunger-Free Kids Act states, including Michigan, have already
       of 2010 requires all state WIC agencies to utilize switched to EBT cards to disperse their WIC
       WIC EBT systems by 2020, but state food policy benefits. Michigan’s WIC program couples WIC
       councils can push for their states to make the benefits with SNAP benefits on what is called a
       transition even sooner.56 Some states, like ―Bridge Card.‖ This allows households who
                                                            receive more than one food assistance benefit to
       Michigan, have even implemented a program to easily use their Bridge Card for all purchases of
       incorporate both SNAP and WIC benefits onto qualifying food products at participating retail
       one EBT card.57 Food policy councils should push vendors.
       for their states to streamline WIC and SNAP
                                                            Source: WIC Policy Memorandum # 2011-3, Implementation of
       benefits in this way in order to make program WIC-Related Electronic Benefit Transfer (EBT), U.S. DEP’T OF
       participation and benefit utilization much easier AGRIC., FOOD & NUTRITION SERV.,
       for dually-enrolled individuals.                     http://www.fns.usda.gov/wic/policyandguidance/wicpol
                                                            icymemos/2011-3-
      Advocating that the state lengthen the state- ImplementationofWICRelatedEBTProvisions-PL111-
                                                                     (last
       determined recertification period for WIC 296.pdf (EBT)visited Oct. 13, 2012); Electronic Benefits
                                                            Transfer       and the Michigan WIC Bridge Card,
                 58
       benefits. Depending on an individual’s status https://www.ebt.acs-inc.com/ebtcard/miwic/index.jsp
       (pregnant, postpartum, breastfeeding, etc.), (last visited Oct. 13, 2012).
       USDA requires that participants apply for re-
       certification at a minimum of either every six


52
   See e.g., You & Your Child: Healthy & Well Fed. WIC Can Help., MINN. DEP’T. OF HEALTH,
http://www.health.state.mn.us/divs/fh/wic/outreach/e1color.pdf (last visited Oct. 13, 2012).
53
   Marketing and Outreach, CAL. DEP’T OF PUB. HEALTH,
http://www.cdph.ca.gov/programs/wicworks/Pages/WICOutreachAndMarketing.aspx (last visited Oct. 13, 2012). See also Eleanor Simon
& Emily Broad Leib, Mississippi WIC for the 21st Century, HARVARD LAW SCHOOL HEALTH LAW & POLICY CLINIC & HARVARD LAW SCHOOL MISS.
DELTA PROJECT 34 (2011), available at http://blogs.law.harvard.edu/foodpolicyinitiative/files/2011/09/WIC-FINAL.pdf.
54
   Women, Infants, and Children Program, CAL. DEP’T OF PUB. HEALTH, http://www.cdph.ca.gov/programs/wicworks/Pages/default.aspx (last
visited Oct. 13, 2012). See also Eleanor Simon & Emily Broad Leib, Mississippi WIC for the 21st Century, HARVARD LAW SCHOOL HEALTH LAW &
POLICY CLINIC & HARVARD LAW SCHOOL MISS. DELTA PROJECT 34 (2011), available at
http://blogs.law.harvard.edu/foodpolicyinitiative/files/2011/09/WIC-FINAL.pdf.
55
   Eleanor Simon & Emily Broad Leib, Mississippi WIC for the 21st Century, HARVARD LAW SCHOOL HEALTH LAW & POLICY CLINIC & HARVARD LAW
SCHOOL MISS. DELTA PROJECT 34 (2011), available at http://blogs.law.harvard.edu/foodpolicyinitiative/files/2011/09/WIC-FINAL.pdf.
56
   WIC EBT Update, EBT Planning: Just Beginning, CAL. DEP’T OF PUB. HEALTH,
http://www.cdph.ca.gov/programs/wicworks/Pages/WICEBTUpdate.aspx (last visited Oct. 13, 2012).
57
   Electronic Benefits Transfer (EBT) and the Michigan WIC Bridge Card, https://www.ebt.acs-inc.com/ebtcard/miwic/index.jsp (last visited Oct.
13, 2012).
58
   7 C.F.R. § 246.7(g) (2012).




                                                                                                            Food Assistance Programs | 47
        months or every year.59 However, states have the prerogative to require recertification more often.60
        The more often participants have to reapply, however, the more difficult it is for individuals to stay
        enrolled in the program. Increasing the time allowed between certifications is a cost-free method that
        food policy councils can advocate for states to use to improve WIC program participation and
        retention.

WIC is designed to provide nutritional help to some of the most vulnerable members of society: pregnant
and postpartum women, infants, and very young children. With assistance from WIC, these participants
have the opportunity to start early with access to sufficient food and healthy eating habits that can combat
negative health outcomes later in life. Therefore, it is important that states take steps to increase WIC
enrollment and participation.

MAXIMIZING FOOD ASSISTANCE PROGRAM USE TO BENEFIT THE LOCAL
ECONOMY Food policy councils can encourage their states to take steps to maximize the food assistance
program benefits being used to purchase nutritious foods that improve the health of benefit recipients while
having a positive impact on the state’s food economy. In particular, states can enable food assistance
program participants to utilize their benefits at farmers markets and engage in various programs that
incentivize participants to utilize program benefits at these markets.

WIC FMNP & WIC Cash Value Vouchers (CVV) The WIC Farmers Market Nutrition
Program (FMNP) is a program within WIC that is designed to serve two purposes: (1) to provide fresh,
nutritious food from farmers markets to WIC participants; and (2) to expand program awareness and sales
at farmers markets.61 The federal FMNP benefit is low, only between $10 and $30 per participant, per
year, but states can supplement that amount with additional funds if they so choose.62 In fiscal year 2011, 46
states, agencies, and tribal governments received federal funding to operate WIC FMNP in their
jurisdictions.63

States can also increase access to farmers market products for WIC participants through the Cash Value
Voucher (CVV) program. CVV is a monthly supplement of $6, $8, or $10 per participant to buy fresh
fruits and vegetables and was added to the WIC program in 2007. 64 Although these vouchers are generally
used at traditional WIC vendors, states are allowed to authorize farmers to accept CVV as payment for their
products at either farmers markets or roadside farm stands.65 According to USDA, only about one-third of
states authorize farmers to accept CVV: California, Oregon, Alaska, Montana, Colorado, Arizona,

59
   Who Gets WIC and How to Apply, U.S. DEP’T OF AGRIC., FOOD & NUTRITION SERV.,
http://www.fns.usda.gov/wic/howtoapply/whogetswicandhowtoapply.htm (last visited Oct. 13, 2012).
60
   7 C.F.R. § 246.7(g)(2) (2012).
61
   7 C.F.R. §§ 248.1–248.26 (2012); WIC Farmers Market Nutrition Program Fact Sheet, U.S. DEP’T OF AGRIC., FOOD & NUTRITION SERV.,
http://www.fns.usda.gov/wic/WIC-FMNP-Fact-Sheet.pdf (last visited Oct. 13, 2012).
62
   WIC Farmers Market Nutrition Program Fact Sheet, U.S. DEP’T OF AGRIC., FOOD & NUTRITION SERV., http://www.fns.usda.gov/wic/WIC-
FMNP-Fact-Sheet.pdf (last visited Oct. 13, 2012).
63
   Id.
64
   7 C.F.R. § 246.12 (2012); Nell Tessman & Andy Fisher, State Implementation of the New WIC Produce Package: Opportunities and Barriers for WIC
Clients to Use Their Benefits at Farmers Markets, COMMUNITY FOOD SECURITY COALITION 2, 5 (2009), available at
http://www.foodsecurity.org/pub/WIC-FarmersMarketReport.pdf.
65
   Nell Tessman & Andy Fisher, State Implementation of the New WIC Produce Package: Opportunities and Barriers for WIC Clients to Use Their Benefits at
Farmers Markets, COMMUNITY FOOD SECURITY COALITION 5 (2009), available at http://www.foodsecurity.org/pub/WIC-
FarmersMarketReport.pdf.




                                                                                                                   Food Assistance Programs | 48
Oklahoma, Minnesota, Michigan, Ohio, South Carolina, Maryland, District of Columbia, New Jersey, New
York, Connecticut, Massachusetts, Rhode Island, and Maine, as well as the Choctaw Nation, Guam, and the
Northern Mariana Islands.66

Some of the barriers to acceptance of CVV and FMNP at farmers markets include: limited staff and
resources to enroll and train farmers to accept CVV; concern over inability to meet the increased demand
that WIC users would present; lack of accessibility of farmers
markets to WIC users, both in terms of transportation and
hours of operation; increased strain on farmers to
                                                                             FMNP & CVV:
differentiate WIC FMNP from CVV; and lack of agency
                                                                  A BENEFIT TO THE LOCAL ECONOMY
coordination between both programs, which may be run by
different agencies in some states.67 Many of these concerns In 2011, 52,500 people purchased fruits
have been successfully confronted by states who have and vegetables from Washington growers
implemented CVV and FMNP at farmers markets. However, using the WIC FMNP, and farm sales from
                                                               the Washington WIC FMNP totaled
as mentioned above, there are still many states that have not
                                                               $764,000.
yet authorized the use of CVV at farmers markets.
                                                                                             The potential impact of CVV is even
Additional barriers exist that prevent both the FMNP and                                     greater both for benefit users and the local
CVV from being more widely used.68 To illustrate the                                         farm economy—even if only 5% of CVV
                                                                                             were redeemed at farmers markets, it
problem, many states give out program vouchers but then
                                                                                             would surpass the buying power of the
have to send hundreds of thousands of dollars back to the                                    entire WIC FMNP.
USDA at the end of the year, as these benefits are not
                                                                               Washington State WIC
utilized. Food policy councils can take several steps to help Sources: WASH. STATE UNIV. EFarmers Market Nutrition
                                                                      Program,                      XTENSION,
increase benefit utilization, as well as strengthen WIC FMNP http://extension.wsu.edu/farmersmarket/Pages/W
and WIC CVV program implementation overall:                           ICFMNP.aspx (last visited Oct. 13, 2012). See NELL
                                                                      TESSMAN & ANDY FISHER, STATE IMPLEMENTATION OF
   Push the state to participate in the FMNP if it is not yet        THE NEW WIC PRODUCE PACKAGE: OPPORTUNITIES &
       doing so.                                                      BARRIERS FOR WIC CLIENTS TO USE THEIR BENEFITS AT
                                                                      FARMERS MARKETS 3 (2009), available at
   Advocate that the state provide supplemental funding              http://www.foodsecurity.org/pub/WIC-
       for WIC FMNP, as the federal funding is quite limited FarmersMarketReport.pdf.
       and the low levels of benefits discourage some WIC
       participants from utilizing their FMNP vouchers. For
       example, in some states, the WIC FMNP benefit for the entire year is only $15, meaning that it may
       not be worthwhile for program participants to travel to eligible vendors to spend their benefits.
   Encourage the state to increase the number of authorized vendors. Because vendors must be
       authorized to accept FMNP benefits as payment, states have control over the number and type of
       entities that are authorized.69 Increasing the number of authorized vendors can significantly increase
       utilization of benefits by making it more likely that participants will be able to find a vendor nearby.
   Push the state to use innovative methods to improve access to authorized vendors. For example, in
       Georgia, most of the clinics that distribute FMNP benefits host small farmers markets on state

66
   States that Authorize Farmers to Accept WIC Cash Value Vouchers (revised as of October 4, 2012), U.S. DEP’T OF AGRIC., FOOD & NUTRITION SERV.,
http://www.fns.usda.gov/wic/WIC-CVV-map.pdf (last visited Nov. 5, 2012).
67
   See Nell Tessman & Andy Fisher, State Implementation of the New WIC Produce Package: Opportunities and Barriers for WIC Clients to Use Their Benefits
at Farmers Markets, CMTY. FOOD SEC. COAL. 6–7 (2009), available at http://www.foodsecurity.org/pub/WIC-FarmersMarketReport.pdf.
68
   See generally id.
69
   7 C.F.R. 248.10(a) (2012).




                                                                                                                   Food Assistance Programs | 49
       Health Department property on the FMNP voucher distribution days.70 By bringing the markets to
       FMNP participants rather than giving them benefits and making them find their way to the limited
       number of authorized markets, Georgia has managed to reach a 95% rate of redemption for the
       vouchers it distributes.71 While Georgia brings farmers to the beneficiaries, Louisiana has taken the
       opposite approach by distributing FMNP vouchers at participating farmers markets.72 This means that
       only those WIC participants who are at the markets already get the vouchers, increasing the
       utilization rate of the vouchers (and ensuring that less money is sent back to the federal government
       at the end of the year). Both states make it easier for beneficiaries to spend their vouchers by ensuring
       that farmers markets are accessible at the moment participants receive their benefits, and advocates
       should encourage their states to follow this lead.
      Advocate for the state to take steps to authorize farmers and farmers markets as vendors that can
       accept CVV or, if your state already allows CVV use at farmers markets and farm stands, encourage
       the state to educate vendors and recipients about how to utilize the CVV program.
      Ask the state to work to identify barriers to WIC FMNP and CVV acceptance, for example by
       conducting focus groups and stakeholder interviews to evaluate concerns and successes of the
       programs, or by creating a WIC FMNP and CVV advisory council.

Seniors FMNP Also housed within the WIC program is the Seniors Farmers Market Nutrition Program
(S-FMNP), which is a federal food assistance program in which states and territories receive federal funding
to distribute coupons to senior citizens to purchase fresh fruit and vegetables.73 These coupons, which range
from $20 to $50 per participant per year, can be used at farmers markets, roadside stands, or to pay for
shares in community-supported agriculture programs (CSAs).74 S-FMNP is available to individuals who are
at least 60 years old and have household incomes of not more than 185% of the federal poverty guidelines.75
The program seeks to increase seniors’ access to fresh, local foods and to increase consumption of local
farmers’ products.76 Fifty-one states and territories currently participate in the program.77 The program
mirrors the WIC FMNP in many ways: the state can place restrictions on where purchasable foods originate
and the state controls authorization of vendors that can accept S-FMNP payments.78 S-FMNP utilization
rates have historically been higher than those of WIC FMNP, likely due to the fact that program benefits are
higher per year, meaning that it is more worthwhile for participants to ensure they utilize their vouchers.

State food policy councils can increase participation in the S-FMNP and improve program outcomes by:




70
   Emily Broad et al., Food Assistance Programs and Mississippi Farmers Markets, HARVARD LAW SCHOOL MISS. DELTA PROJECT 21 (2010), available at
http://blogs.law.harvard.edu/foodpolicyinitiative/files/2011/09/Mississippi-Farmers-Markets-Food-Assistance-Benefits-FORMATTED.pdf.
71
   Id.
72
   Id.
73
   Senior Farmers Market Nutrition Program Fact Sheet, U.S. DEP’T OF AGRIC., FOOD & NUTRITION SERV., http://www.fns.usda.gov/wic/SFMNP-
Fact-Sheet.pdf (last visited Oct. 13, 2012).
74
   Id.
75
   Senior Farmers Market Nutrition Program, U.S. DEP’T OF AGRIC., FOOD & NUTRITION SERV.,
http://www.fns.usda.gov/wic/SeniorFMNP/SeniorFMNPoverview.htm (last visited Oct. 29, 2012).
76
   Senior Farmers Market Nutrition Program Fact Sheet, U.S. DEP’T OF AGRIC., FOOD & NUTRITION SERV., http://www.fns.usda.gov/wic/SFMNP-
Fact-Sheet.pdf (last visited Oct. 13, 2012).
77
   Id.
78
   7 C.F.R. §§ 249.8(a), 249.10 (2012); Senior Farmers Market Nutrition Program Fact Sheet, U.S. DEP’T OF AGRIC., FOOD & NUTRITION SERV.,
http://www.fns.usda.gov/wic/SFMNP-Fact-Sheet.pdf (last visited Oct. 13, 2012).




                                                                                                             Food Assistance Programs | 50
      Pushing the state to increase the number of authorized vendors and to adopt policies that make it
       easier for farmers markets, roadside stands, and CSAs to accept S-FMNP as payment. 79
      Advocating that the state increase its outreach efforts to eligible participants. In California, the state
       Department of Food and Agriculture (CDFA) partnered with the state’s Area Agencies on Aging to
       distribute S-FMNP voucher booklets.80 This partnership allowed the CDFA to use already existing
       distribution networks to distribute the vouchers.81 In 2011, the S-FMNP vouchers were used to
       purchase fresh, locally grown products from 1,000 farmers at 450 certified farmers markets approved
       to participate in the S-FMNP in California.82

SNAP at Farmers Markets The use of SNAP benefits at farmers markets is growing in popularity.
Food policy councils should advocate that states allow and encourage the use of SNAP benefits via EBT
cards at farmers markets. State food policy councils should pay attention to three main avenues to increase
EBT use at farmers markets: (1) ensuring that markets are
authorized to accept EBT cards and assisting them in
obtaining wireless EBT readers so that they have the                MODEL DOUBLE BENEFIT PROGRAM
machinery required to accept EBT benefits; (2) educating Incentive programs or ―double up‖ programs
both consumers and vendors about the availability of SNAP are great ways to encourage SNAP
EBT use at farmers markets and the substantial benefits of participants to use their benefits at farmers
such utilization; and (3) encouraging use of benefits at markets while also increasing the take home
farmers markets through policies that incentivize such use.     pay to farmers. One of the best examples is
                                                                                 the ―Double Up Food Bucks‖ program
                                                                                 administered by Michigan’s Fair Food
The first way that food policy councils can help increase
                                                                                 Network. The Fair Food Network, a non-
SNAP use at farmers markets is by breaking down barriers                         governmental entity, raises money from
to EBT use at markets. By their nature, farmers markets                          various foundations to fund the project.
almost always lack access to electricity and telephone lines,                    When SNAP users buy food at Michigan
so they are unable to use regular EBT card readers that                          farmers markets using their EBT cards, they
require wired telephone connections.83 Food policy councils                      receive a voucher matching the amount they
can push states to take active roles in ensuring that markets                    spent (up to $20 per visit) in ―Double Up
in the state have access to the needed wireless EBT readers.                     Food Bucks‖ tokens that can be spent as cash
Washington provides a good example of how a state can                            at the farmers market.
take the initiative to ensure that low-income citizens have                      Source: Double Up Food Bucks, FAIR FOOD NETWORK,
access to healthy, local foods.84 In its Local Farms–Healthy                     http://www.fairfoodnetwork.org/what-we-
                                                                                 do/projects/double-food-bucks (last visited Oct. 13,
Kids bill, the state provided funding to a group of farmers                      2012).
markets to allow those markets to purchase wireless EBT
readers, which means that these markets now have the
infrastructure to process EBT payments.85 In states where

79
   See How Do I Participate in the Farmers Market Nutrition Program for Seniors, Women and Children?, CAL. DEP’T OF FOOD & AGRIC.,
http://www.cdfa.ca.gov/SeniorFarmersMrktNutritionPrgm/docs/Become_a_CFMNP.pdf (last visited Oct. 13, 2012).
80
   About the Senior Farmers Market Nutrition Program, CAL. DEP’T OF FOOD & AGRIC., http://www.cdfa.ca.gov/SeniorFarmersMrktNutritionPrgm
(last visited Oct. 13, 2012).
81
   Id.
82
   Id.
83
   Carley Bollen, Anne Vernez-Moudon, Karen Kinney, & Adam Drewnowski, How Farmers Markets Can Promote Access to Healthy Food, UNIV. OF
WASH. CTR. FOR PUB. HEALTH NUTRITION 4 (2010), available at http://depts.washington.edu/uwcphn/reports/fm_brief.pdf.
84
   Id.
85
   2008 Wash. Sess. Laws 215; Carley Bollen, Anne Vernez-Moudon, Karen Kinney, & Adam Drewnowski, How Farmers Markets Can Promote
Access to Healthy Food, UNIV. OF WASH. CTR. FOR PUB. HEALTH NUTRITION 4 (2010), available at




                                                                                                       Food Assistance Programs | 51
many markets still do not have access to wireless EBT readers, food policy councils should push for the state
government to either ask the USDA to help provide readers in the state or use state funding to purchase and
provide readers to farmers markets in areas around the state.

            TABLE IV-1: RECOMMENDATIONS TO EXPAND FOOD BENEFIT USE AT FARMERS MARKETS

                            SNAP                                     WIC/CVV                                  WIC/SENIORS-FMNP

 CURRENT USE               No limit on funds used at                $6-10/month for fruits and               WIC FMNP offers $10-
 AT FARMERS                farmers market. Can be used at           vegetables allowed if state              30/recipient/year to spend at
                           any markets that are authorized          approves Cash Value Voucher              registered farmers markets. S-
 MARKETS                   SNAP vendors and have EBT                (CVV)* checks at market.                 FMNP generally has higher
                           machines.                                                                         voucher rates. Both programs
                                                                                                             have limited availability.

 STEPS TO                  Work with state government,              Advocate for state regulations           Advocate for expansion or
 INCREASE                  such as the department of health,        that allow WIC CVV checks to             implementation of these
                           to support the free distribution         be spent at farmers markets in           programs by asking elected
 FARMERS                   of wireless EBT machines or              addition to grocery stores or            officials to push for an expansion
 MARKET                    push for those markets that do           other authorized WIC vendors.            of federal FMNP funding.
 PARTICIPATION             not have free machines to
                                                                    Where allowed, push for an               Push for state government to
                           purchase machines.
                                                                    educational campaign for                 appropriate additional funds to
                           Advocate for a requirement that          farmers markets about WIC                supplement these programs and
                           all state farmers markets accept         CVV that encourages them to              bring them to more areas, or to
                           SNAP. Push existing markets to           take steps to become authorized          increase the voucher amounts.
                           transition by a certain date.            WIC CVV vendors.


The second way that food policy councils can increase EBT use at farmers markets is through fostering
outreach and education. In states where EBT is already accepted at farmers markets, some of the main
barriers to its use stem from a lack of information. In particular, EBT users are largely unaware that they
can pay for goods at farmers markets with their EBT cards and they tend to believe that farmers markets are
more expensive than other food sources, even though in reality they may be less expensive.86 Food policy
councils should utilize outreach and education programs to ensure that SNAP participants know how and
where they can use their farmers market benefits, and that they understand the positive outcomes they can
have by using their benefits at farmers markets.

Finally, the third way that food policy councils can increase EBT use at farmers markets is by helping to
incentivize utilization of SNAP benefits at farmers markets. Food policy councils can push their states to get
involved by either underwriting or encouraging the private funding of ―double benefit‖ programs for SNAP
users who use their EBT cards to purchase food at farmers markets. These programs increase families’
buying power by matching their purchases at farmers markets up to a certain point, increasing the amount
of money they have to spend on fruits and vegetables while increasing the amount of money that is funneled
to local farmers. Double benefit programs already exist in many cities and states across the country, though


http://depts.washington.edu/uwcphn/reports/fm_brief.pdf; see Food Stamps and EBT at Farmers Markets, WASH. STATE FARMERS MKT. ASS’N,
http://www.wafarmersmarkets.com/resources/foodstamps-market.html (last visited Oct. 13, 2012).
86
   Christine Grace, Thomas Grace, & Nancy Becker, Barriers to Using Urban Farmers’ Market: An Investigation of Food Stamp Clients’ Perception, OR.
FOOD BANK 8 (2005), available at http://oregonfarmersmarkets.org/EBT/docs/BarrierstoUsingFarmersMarkets102206.pdf.




                                                                                                                Food Assistance Programs | 52
often in different forms. Minnesota, for example, has a program called ―Market Bucks‖, a partnership
between Blue Cross and Blue Shield and the Minneapolis Department of Health, in which the first $5 of a
customer’s EBT purchase is matched each market day. Similarly, Michigan’s ―Double Up Food Bucks‖
program (see text box) provides SNAP participants with up to $20 in matching funds per visit.87 While the
Michigan program and most others around the country are administered by private organizations, states
could certainly run such programs on their own or at least provide support to organizations wishing to start
these programs.88 Food policy councils can identify these funding opportunities to implement a similar
matching program, or aid state governments in doing so.

CONCLUSION As the economy has suffered and more Americans find themselves in need of assistance
to meet their basic food needs, it is imperative that these programs are accessible and state food policy
councils have an important opportunity to advocate for policies that increase access to state and federal food
assistance programs. Pushing the state to remove barriers to participation, increase funding, and expand
marketing and outreach efforts are just a few ways state food policy councils can improve these much
needed food assistance programs.




87
   Double Up Food Bucks, FAIR FOOD NETWORK, http://www.fairfoodnetwork.org/what-we-do/projects/double-food-bucks (last visited Oct.
13, 2012).
88
   See Innovative Program at Six Minneapolis Farmers Markets Helps Low-Income Minnesotans Eat Better, INST. FOR AGRIC. & TRADE POLICY (July 2011),
http://www.iatp.org/documents/innovative-program-at-six-minneapolis-farmers-markets-helps-low-income-minnesotans-eat-bet.




                                                                                                                Food Assistance Programs | 53
SECTION V: CONSUMER ACCESS & CONSUMER DEMAND
Increasing the number of retail opportunities for consumers, addressing and updating the laws about expiration dates on foods and
food donation, and tackling transportation concerns all play in to increasing consumer access to healthy foods. Methods to educate
consumers about eating healthy foods and increase their demand for healthy foods can include labeling, taxes, and bans.

OVERVIEW As discussions about ―food deserts‖ and consumers’ lack of access to healthy foods increase,
food policy councils can take action to support and facilitate the development of more retail options in
places where consumers are lacking healthy options. State food policy councils can also advocate for laws
that ensure that good, healthy, and safe food can be consumed, instead of thrown away. Finally, increasing
consumer access to healthy options goes hand-in-hand with educating consumers to eat healthier foods,
which can be done through a range of methods, including menu labeling, tax policy, and, somewhat
controversially, food or ingredient bans.
1. Improving Consumer Access Many consumers lack access to healthy food retailers in
underserved neighborhoods. Areas that lack food retailers such as grocery stores, farmers markets, and even
community gardens and mobile vending can benefit from policy changes to incentivize retailers to open in
those areas. Additionally, policies surrounding expiration dates of foods, food donation, and transportation
can significantly impact consumers’ access to healthy foods.
2. Increasing Consumer Demand for Healthy Foods States can take steps to educate
consumers about healthy foods and encourage consumption of healthy, as opposed to unhealthy, foods.
State food policy councils can push for policies that influence consumer demand through labeling, taxes, and
even bans on certain items.

IMPROVING CONSUMER ACCESS                      Increasing access to healthy foods requires more than just
providing financial assistance to those who cannot afford these foods, it also means ensuring that all
individuals and families have healthy food retailers in their community or easily accessible by public
transportation. Making sure that every community in a state has access to healthy food retailers continues to
be a challenge in low-income neighborhoods and rural areas. These underserved neighborhoods are often
called ―food deserts‖ or ―food swamps.‖1 This section discusses ways state food policy councils can help
increase the number of healthy food retail options in their states.

Permanent Retail Food Establishments Grocery stores continue to be the primary place most
consumers purchase their food or would purchase their food if accessible. Construction of more full-service
grocery stores in areas lacking permanent retail food establishments offers the convenience of longer
operating hours, greater selection, and greater affordability, as well as opportunity for economic
development through increased employment for the community.

One way food policy councils can increase the amount of permanent healthy food vendors in their state is
by educating potential retailers about existing sources of funding and pushing for the state to set up



1
  Food deserts are defined as ―communities in which residents are unable to easily purchase nutritious food due to distance from a market, price,
lack of transportation or absence of healthy options.‖ Healthy Food Financing Initiative, U.S. DEP’T HEALTH & HUM. SERV., OFFICE OF CMTY.
SERVS., ADMIN. FOR CHILDREN & FAMILIES (Jan. 2011), http://www.acf.hhs.gov/programs/ocs/ocs_food.html; see also Gina Kolata, Studies
Question the Pairing of Food Deserts and Obesity, N.Y. TIMES, Apr. 18, 2012, at A1, available at
http://www.nytimes.com/2012/04/18/health/research/pairing-of-food-deserts-and-obesity-challenged-in-studies.html?_r=0.


                                                                                              Consumer Access & Consumer Demand | 54
mechanisms that will provide additional funding, such as a state-operated Fresh Food Financing Initiative.2
These programs help to fund projects that bring new sources of healthy, fresh foods into low-income
communities currently lacking such options.3

The first Fresh Food Financing Initiative was established in Pennsylvania (with help from local nonprofit
The Food Trust) to assist with financing retail food vendors in underserved communities by providing
grants and loans to help them open new locations or expand existing operations in order to provide more
fresh fruits and vegetables.4 As of 2012, this public-private partnership managed funds of $85 million and
provided funding for 88 fresh-food retail projects in 34 Pennsylvania counties.5 The Initiative estimates that
this funding has created or preserved more than 5,000 jobs, while improving access to healthy food for
more than 500,000 people.6 Several other states have followed suit and created their own state-level Fresh
Food Financing Initiatives, including California, Illinois, Louisiana, New York, and New Jersey. In states
that do not operate a Fresh Food Financing Initiative, state food policy councils can partner with various
                                          stakeholders like grocery stores, small retailers, community
     CALIFORNIA’S HEALTHY FOOD
                                          members, and other nonprofit organizations to push the state to
         FINANCING INITIATIVE             create such a program.
    In 2011, California became one of
    several states to adopt a financing
                                                        Farmers Markets Farmers markets have seen tremendous
    initiative that provides financial                  growth in popularity over the past few years, with the number of
    assistance to food retailers that wish to           farmers markets in the U.S. increasing 17% between 2010 and
    open in food deserts. The state also                2011, and 9.6% between 2011 and 2012.7 Farmers markets offer
    created a council to help implement                 consumers access to fresh, locally grown foods, and provide small-
    the new initiative, as well as serving as           to mid-size producers with a market for their products.
    a partner to operate the program in                 Additionally, farmers markets support the local economy by
    conjunction with local government                   keeping the community’s food dollars within the community
    and non-governmental agencies.                      (instead of sending local dollars to distant food producers). By
    Source: CAL. HEALTH & SAFETY CODE §§                supporting farmers markets, communities can help increase the
    104660–104664 (2012). See also Kay                  demand for local produce, which will encourage increased
    Cuajunco, New CA Financing Initiative to Increase
    Access to Healthy Food in Oakland, OAKLAND          production of fruits and vegetables.
    LOCAL, Oct. 13, 2011,
    http://oaklandlocal.com/posts/2011/10/ne            There are several ways that state food policy councils can help to
    w-ca-financing-initiative-increase-access-
    healthy-food-oakland-community-voices.              grow the farmers markets within the state.
                                                           First, they should work to become familiar with the state
                                                        rules and regulations governing farmers markets and other similar



2
  Pennsylvania Fresh Food Financing Initiative, THE FOOD TRUST, http://www.thefoodtrust.org/php/programs/fffi.php (last visited Nov. 2,
2012); Kay Cuajunco, New CA Financing Initiative to Increase Access to Healthy Food in Oakland, OAKLAND LOCAL, Oct. 13, 2011,
http://oaklandlocal.com/posts/2011/10/new-ca-financing-initiative-increase-access-healthy-food-oakland-community-voices.
3
  Pennsylvania Fresh Food Financing Initiative, THE FOOD TRUST, http://www.thefoodtrust.org/php/programs/fffi.php (last visited Nov. 2,
2012); Kay Cuajunco, New CA Financing Initiative to Increase Access to Healthy Food in Oakland, OAKLAND LOCAL, Oct. 13, 2011,
http://oaklandlocal.com/posts/2011/10/new-ca-financing-initiative-increase-access-healthy-food-oakland-community-voices.
4
  Pennsylvania Fresh Food Financing Initiative, THE FOOD TRUST, http://www.thefoodtrust.org/php/programs/fffi.php (last visited Nov. 2,
2012).
5
  Id.
6
  Id.
7
  Farmers Market Growth: 1994–2012, U.S. DEP’T OF AGRIC., AGRIC. MKTG. SERV.,
http://www.ams.usda.gov/AMSv1.0/ams.fetchTemplateData.do?template=TemplateS&leftNav=WholesaleandFarmersMarkets&page=WF
MFarmersMarketGrowth&description=Farmers%20Market%20Growth&acct=frmrdirmkt (last visited Oct. 3, 2012).


                                                                                        Consumer Access & Consumer Demand | 55
      retail outlets, such as farm stands. Farmers markets have very little federal regulation, so most of the
      rules that apply to them will have been created by state and local government.
     Once the food policy council has a grasp of the rules that apply to farmers markets, it can push the
      state to create (or work with partners to create) easy-to-understand guidance documents about these
      rules and regulations. A good example of such a guide is a Purdue University Extension document
      summarizing the food safety regulations that apply to farmers markets in Indiana.8
     Food policy councils should also advocate for the state to break down the legal barriers that farmers
      and farmers markets face and push state government to create simpler and more streamlined
      permitting processes. For example, some food safety rules may disproportionately affect small
      producers that sell at farmers markets. States can ensure that regulations support farmers market
      development, by allowing for cottage food production or allowing food to be kept cool on ice during
      market hours rather than using mechanical refrigeration.
     Finally, food policy councils can work to secure increased funding for farmers markets using either
      federal or state resources. One source of funding is the federal Farmers Market Promotion Program,
      which is administered by the USDA Agricultural Marketing Service and offers grants for the operation
      of farmers markets.9 Food policy councils can research whether people in the state are applying for
      these federal grants; if not, they can encourage eligible groups to do so, and offer to assist with the
      application process. States can also create their own state-level version of the farmers market
      promotion program and offer grants or other funding to support the creation and growth of farmers
      markets. State food policy councils should not forget that they can always advocate to the state
      government to help invest in these important community resources.

Farmers markets are a key element in local food systems because they provide an easy way for new farmers
to start selling their food products and they help increase access to healthy foods at more locations. Because
they can be established more quickly and on less land than a retail grocery store, they can be a good
opportunity to invest in the food system and increase food access in the short term in ways that will pay off
with longer term food system success.

Community Gardens Community gardens are a great way to increase community access to fruits and
vegetables.10 The New York State Department of Agriculture and Markets has a Community Gardens
Program that offers a wide range of resources on starting a community garden, funding, applicable laws,
and connecting with existing community gardens.11 Using the New York Community Gardens Program as
an example, state food policy councils can support the development of community gardens by:
   Advocating for creation of a state-level community garden program.
   Pushing for legislation that would allow community gardens to be established on state-owned land.12
      In New York, community gardens can be established on state-owned land such as Department of
      Transportation and N.Y. State Parks properties.13


8
  Christa Hofmann, Jennifer Dennis, A. Scott Gilliam & Shirley Vargas, Food Safety Regulations for Farmers’ Markets, PURDUE UNIV. EXTENSION,
http://www.extension.purdue.edu/extmedia/EC/EC-740.pdf (last visited Oct. 11, 2012).
9
  Farmers Market Promotion Program, U.S. DEP’T OF AGRIC., AGRIC. MKTG. SERV., http://www.ams.usda.gov/AMSv1.0/FMPP (last visited Oct.
3, 2012).
10
   What is a Community Garden?, AM. CMTY. GARDENING ASSOC., http://communitygarden.org/learn/ (last visited Nov. 1, 2012).
11
   The Community Gardens Program, N.Y. STATE DEP’T OF AGRIC. & MARKETS, http://www.agriculture.ny.gov/cg/CGHome.html (last visited
Nov. 1, 2012).
12
   Community Gardens Law, N.Y. STATE DEP’T OF AGRIC. & MARKETS, http://www.agriculture.ny.gov/cg/CGLaw.html (last visited Nov. 1,
2012).


                                                                                           Consumer Access & Consumer Demand | 56
      Advocating for funding at the state level. New York provides funding opportunities in the form of
       grants and matching funds. The grant opportunities are from the Department of Agriculture and
       Markets and the Department of Environmental Conservation.14 The matching funds program comes
       from the Office of Parks, Recreation and Historic Preservation.15 State food policy councils can
       advocate that resources from a variety of state offices be used to support community gardens.
      Encouraging the state to offer supplemental funding for projects that receive federal grants. For
       example, the U.S. Department of Housing and Urban Development (HUD) has a Community
       Development Block Grant program that can be used to develop community gardens,16 and states can
       provide further assistance by providing supplemental funds to support entities that receive these
       federal grants.

Mobile Vending Retail food establishments that offer healthy options do not have to be housed in
permanent buildings. A growing number of cities and states throughout the U.S. are seeing an increase in
mobile vending units. These mobile vending units are essentially farmers markets on wheels that can service
areas with few or no healthy retail food options. State food policy councils can facilitate the development of
this industry by:
   Pushing the state to create a permit for these entities so that they are allowed to operate throughout
       the state.
   Encouraging the state to allocate funding to support these mobile markets.
   Advocating that the state pass legislation to help develop the infrastructure needed for these markets.
       In New Jersey, the state legislature passed the New Jersey Fresh Mobiles Pilot Program.17 The Act
       ―calls for the state Department of Agriculture to develop a network of mobile farmers markets that
       will travel to underserved communities and sell fresh produce.‖18 The program also utilizes vouchers
       to provide a discount for low-income individuals and families using the mobile markets.19

Food Donations & Reducing Food Waste Despite persistently high rates of hunger and food
insecurity, the amount of food that goes to waste has been steadily increasing. States can use a variety of
tools to salvage safe foods that would otherwise go to waste and redirect them to the tables of the hungry.
Food policy councils can encourage states to strengthen the legal protections that shield retailers and other
entities that donate food from certain types of liability that may otherwise result from these donations, thus
encouraging more food donations and gleaning programs. They can also push states to lift or soften
regulations barring the sale of foods that have passed their sell-by dates but that are still safe to consume.

Gleaning and Food Donation Much of the food that goes to waste can be redirected and distributed to
those in need. Many cities have nonprofits and networks involved in gleaning, which means taking produce

13
   Community Gardening Resources, N.Y. STATE DEP’T OF AGRIC. & MARKETS, http://www.agriculture.ny.gov/cg/CGResources.html (last visited
Nov. 1, 2012).
14
   Community Gardens Funding, N.Y. STATE DEP’T OF AGRIC. & MARKETS, http://www.agriculture.ny.gov/cg/CGFunding.html (last visited Nov.
1, 2012).
15
   Id.
16
   Community Development Block Grant Program, U.S. DEP’T OF HOUSING & URBAN DEV.,
http://portal.hud.gov/hudportal/HUD?src=/program_offices/comm_planning/communitydevelopment/programs (last visited Oct. 31,
2012).
17
   N.J. STAT. ANN. § 4:10-25.3 (2012).
18
   Annie Knox, Mobile Farmers Markets Would Deliver the Garden to the Garden State, N.J. SPOTLIGHT, Sept. 19, 2011, available at
http://www.njspotlight.com/stories/11/0918/2024/.
19
   Id.


                                                                                       Consumer Access & Consumer Demand | 57
or crops that are left over after fields have been harvested or from food service programs and donating those
food items to nonprofits, food pantries, and shelters. For example, The Campus Kitchens Project, one of
the DC Central Kitchen’s satellite programs in Washington, DC, has partnered with 31 high schools,
colleges, and universities around the country to help turn leftover food from cafeterias and food service
businesses into complete meals for the hungry and homeless.20 Similarly, in Boston, MA, Food for Free
rescues food from wholesale distributors, grocery stores, farms, farmers markets, CSA distribution sites,
bakeries, and other retailers and distributes it to isolated seniors and people with disabilities.21

                                                                   Many businesses are concerned about the liability issues
                     WASTE & HUNGER                                associated with donating food, which may prevent them
                                                                   from donating such food, even when the food is perfectly
     Americans waste at least one quarter of all                   safe to eat. In 1996, the U.S. Congress passed the Bill
     food produced in the country, or about 100                    Emerson Good Samaritan Food Donation Act, which
     billion pounds of food per year. This
                                                                   protects citizens, businesses, and nonprofit organizations that
     staggering statistic is all the more troubling
     when one recalls that nearly 15% of                           donate, recover, and distribute excess food.22 The Act
     Americans were food insecure in 2010.                         provides refuge from civil and criminal liability for those
                                                                   who donate or distribute such food, absent gross negligence
     Sources: Tara Parker-Pope, An Abundance of Food,
     Wasted, N.Y. TIMES WELL BLOG (Nov. 27, 2008,),                and/or intentional misconduct, so long as the food is
     http://well.blogs.nytimes.com/2008/11/27/an-                  wholesome and meets all federal, state, and local laws
     abundance-of-holiday-food-wasted/; Alisha Coleman-            regarding quality and labeling standards.23
     Jensen et al., Household Food Security in the United States
     in 2010, U.S. DEP’T OF AGRIC, 4 (Sept. 2011),
     available at                               In addition, every state has its own version of a food donor
     http://www.ers.usda.gov/Publications/ERR125/ER
                                                protection act, and some states have gone further to increase
     R125.pdf.
                                                the protections available or the classes of food donors
                                                protected.24 For example, Massachusetts provides
additional protection from civil or criminal liability for a food donor or a nonprofit organization that
distributes food either for no charge or ―at cost,‖ so long as the food complies with state health department
regulations.25 Many supermarkets and other large entities may feel emboldened to donate newly expired
and other unwanted foods when offered legal immunity of this kind.26

Food policy councils can seek to decrease the amount of food that goes to waste in their communities and
help those in need by:
   Raising awareness among potential food donors and potential distributing organizations that the
      federal Bill Emerson Good Samaritan Food Donation Act (as well as various state food donation or
      ―Good Samaritan‖ acts) protect against civil and criminal liability.
   Encouraging their states to pass more protective versions of their Good Samaritan Acts, as the federal
      statute provides a minimum level of donor immunity that does not cover every act of food
      donation.27 In particular, they can advocate for legislative changes that would strengthen protections
20
   See THE CAMPUS KITCHENS PROJECT, http://www.campuskitchens.org/ (last visited April 19, 2012).
21
   See FOOD FOR FREE, http://www.foodforfree.org/ (last visited April 19, 2012).
22
   42 U.S.C.A. § 1791 (2012).
23
   Id.
24
   See A Citizen’s Guide to Food Recovery, U.S. DEP’T OF AGRIC., app. D (1996) available at http://infohouse.p2ric.org/ref/40/39578.htm; Produce
Rescue Program: Food for Free, U.S. DEP’T OF AGRIC., http://www.foodforfree.org/produce-rescue-program (last visited Oct. 10, 2012).
25
   MASS. GEN. LAWS ch. 94, § 328 (2012).
26
   See Supermarket Gleaning Program, CMTY. FOOD BANK OF N.J., http://www.njfoodbank.org/_assets/docs/downloads/supermarket-gleaning-
program.pdf (last visited Apr. 22, 2012) (highlighting protection from liability as a benefit to supermarket participation in a gleaning program).
27
   A Citizen’s Guide to Food Recovery, U.S. DEP’T OF AGRIC., (1996), available at http://infohouse.p2ric.org/ref/40/39578.htm.


                                                                                              Consumer Access & Consumer Demand | 58
       for food donors, for example by extending legal immunity to individuals who make direct donations
       to the needy (Florida), as well as to entities that resell donated foods to recover operating costs and
       other nominal fees (Arkansas). 28
      Raising awareness about the availability of federal tax credits for those who make charitable donations
       of food and helping to educate organizations to ensure that they take advantage of these credits.29
      Pushing for the passage of additional local and state tax credits for these organizations. For example,
       Oregon has created a crop donation tax credit that gives a credit to a corporation or individual who
       donates crops to a gleaning cooperative, food bank, or other nonprofit organization.30

Each of these changes would further encourage food industry stakeholders and consumers to donate
unwanted food to needy local citizens rather than disposing of it.

Expiration Dates With the exception of infant formula, federal regulations do not require food
manufacturers to place sell-by, best by, best-if-used-by,
or other expiration dates on food package labels.31 There
is no universal system for product dating, and                 EXAMPLES OF STATE GOOD SAMARITAN
manufacturers do not necessarily base their chosen dates                       ACTS
                       32
on food safety alone. Nonetheless, many states have         North Carolina’s Good Samaritan Act covers
elected to regulate the sale of food items that have passed all food, regardless of the ―nature, age,
these dates.                                                condition, or packaging.‖ The scope of the
                                                                                   North Carolina immunity statute is thus
These state regulations are meant to protect public                                broader than that of the federal Act, which is
health, and they may reflect a general public sentiment                            limited to ―apparently wholesome food or …
that the dates are meaningful.33 However, they may also                            apparently fit grocery products.‖
contribute to waste by forcing retailers to discard foods                          In Florida, individuals who receive and
that can still be safely consumed. Similarly, consumers                            distribute donations enjoy the same legal
lacking awareness about the basis for these dates may                              immunity as do non-profit organizations.
discard countless pounds of food that may actually still be                        Organizations in Arkansas that receive food
safe and healthy to consume.                                                       donations and resell these foods ―at nominal
                                                                                   cost‖ enjoy the same level of legal immunity as
State food policy councils should consider working with                            organizations that distribute donated foods free
their local legislatures to soften the duty to discard                             of charge.
expired foods by:                                                                  Sources: 42 U.S.C. § 1791(c) (2012); ARK. CODE ANN. §
   Eliminating the regulations altogether (following                              20-57-103 (2012); FLA. STAT. ANN. § 768.136(2), (3)
                                                                                   (2012); N.C. GEN. STAT. ANN. § 99B-10 (2012).
       the example of states like California, Illinois, New
       York, North Carolina, and Tennessee, which do

28
   See id. at app. D (listing all of the state Good Samaritan Act statutes).
29
   26 U.S.C.A. § 170 (e)(3)(C) (2012).
30
   OR. REV. STAT. § 315.156 (2012). North Carolina, Colorado, and Arizona have similar tax incentive programs.
31
   Food Product Dating, U.S. DEP’T OF AGRIC., FOOD SAFETY & INSPECTION SERV.,
http://www.fsis.usda.gov/Factsheets/Food_Product_dating/index.asp (last visited Sept. 16, 2011).
32
   Food Product Dating, U.S. DEP’T OF AGRIC., FOOD SAFETY & INSPECTION SERV.,
http://www.fsis.usda.gov/Factsheets/Food_Product_dating/index.asp (last visited Sept. 16, 2011).
33
   See Gregory Karp, Outdated Items at Dominick's Upsets Customers, CHICAGO TRIBUNE, Feb. 18, 2011, available at
http://articles.chicagotribune.com/2011-02-18/business/ct-biz-0218-dominicks-food-20110218_1_expiration-dates-dates-on-food-
products-food-safety; but see Sherri Graslie, Willing to Play the Dating Game with Your Food? Try a Grocery Auction, NPR (Aug. 23, 2012),
http://www.npr.org/blogs/thesalt/2012/08/23/159601015/willing-to-play-the-dating-game-with-your-food-try-a-grocery-auction.


                                                                                              Consumer Access & Consumer Demand | 59
       not regulate the sale of foods after their sell-by or best-by dates);
      Enabling producers to sell expired food in specially-designated salvage grocery stores;34 or
      Creating consumer awareness programs that help educate retailers and consumers that these dates are
       not reflections of food safety, that food may still be safe to eat and need not be discarded on its sell-by
       or best-by date, and that these dates are leading to unprecedented levels of food waste.

Improving Transportation to Healthy Food Sources In order to increase healthy food
access, food policy councils should also work to ensure that public transportation options are available to
provide residents with the ability to access retail food outlets. In addition to increasing transit options,
improving access to modes of transportation that support consumers’ ability to walk and bike can also
expand food access while promoting healthy lifestyles and increasing community connections and safety.
Food policy councils can:
   Push for states to provide funding for development of mass transit options, which can help low-
      income populations access many needed services, especially food retailers. A number of states,
      including Connecticut, have dedicated funding to the development of bus rapid transit (BRT). BRT
      combines the benefits of light rail’s limited stops and dedicated lanes with the affordability and
      flexibility of buses. Connecticut dedicated more than $1 million to support BRT development.35
      Councils may also want to push for cities and states to review existing mass transit routes and ensure
      that those in need have direct routes to local stores, or change the routes to make this possible.
   Work with state public transportation authorities to push for funding for innovative transportation
      projects that will increase underserved communities’ access to healthy foods. For example, the
      Washington legislature created a ―complete streets‖ grant program in conjunction with their
      Department of Transportation to encourage the state’s local governments to adopt ordinances that
      provide safe transportation access to all users, including bicyclists, pedestrians, and public
      transportation users.36 The grant encourages the ongoing design of major transportation arteries to
      include accessible means of transport, such as wider sidewalks and bicycle lanes. 37 This infrastructure
      can be targeted to areas with insufficient or inaccessible healthy food retail options, thus increasing
      opportunities for safer and faster means of purchasing healthy foods for underserved communities.

State governments have a huge role to play in deciding how to allocate transportation funds to cities and
counties, which gives state food policy councils a great opportunity to push for the state to direct that
money towards improving transportation infrastructure to support access to healthy food retail options.

INCREASING CONSUMER DEMAND FOR HEALTHY FOODS                                       In addition to improving
geographic access and transportation routes to healthy food retailers and increasing participation by those
eligible for food assistance programs, there are a number of ways to boost the demand for healthy foods by
targeting consumer behavior. This section highlights some ways state food policy councils can influence
demand using the following policy tools: labels, taxes, and bans. It is important to note that many of these
policy changes are still quite controversial, so each food policy council will have to make its own unique

34
   See Nadia Arumugam, What Happens to Old and Expired Supermarket Foods, FORBES (Jan. 6, 2012),
http://www.forbes.com/sites/nadiaarumugam/2012/01/06/what-happens-to-old-and-expired-supermarket-foods/.
35
   NAT’L CONFERENCE OF STATE LEGISLATURES, ON THE MOVE: STATE STRATEGIES FOR 21ST CENTURY TRANSPORTATION SOLUTIONS 47 (2012),
available at http://www.ncsl.org/documents/transportation/On-THE-MOVE.pdf.
36
   WASH. REV. CODE § 47.04 (2012).
37
   WASH. REV. CODE § 47.04 (2012).


                                                                                   Consumer Access & Consumer Demand | 60
decision about whether these policies are feasible in their state and whether they want to spend the political
capital needed to push one of these changes through.

Labeling Often the most realistic option for targeting consumer behavior to change eating habits is by
providing more or better information, which most commonly takes the form of nutrition labeling.
Nutrition labels are the way consumers get vital information about the foods they eat.

The U.S. Food and Drug Administration (FDA) requires certain information to be included on the labels of
packaged food that is sold interstate.38 A state may have its own nutrition labeling rules for foods that are
sold intrastate. Many states have adopted the federal nutrition labeling rules (often with exceptions for
cottage foods, see Section VIII: Food Safety & Processing for more information). State food policy councils
may want to examine their state’s nutrition labeling requirements to see whether, and how, the labeling
requirements differ from the federal rules. For foods that are only sold intrastate, a food policy council can
work to improve the labeling requirements to provide additional nutrition-related information and present
that information in a more user-friendly way, while still allowing flexibility around labeling rules for
fledgling entrepreneurs, like cottage food entities.

State food policy councils can also focus their attention on passing menu labeling laws for restaurants within
their state that fall outside the federal menu labeling law that was passed as part of the Patient Protection
and Affordable Care Act of 2010.39 The federal menu labeling law requires chain stores with more than 20
locations to include nutritional information on their menus and display boards.40 The federal law mirrors
California’s own menu labeling law, passed in 2008.41 Although California’s own law is now preempted by
the federal law, California (and other states) could still pass menu labeling laws for restaurants with fewer
than 20 locations, which are not covered by the federal law.42 State food policy councils can advocate that
their state expand menu labeling to other restaurants and food establishments to ensure consumers are well-
informed about their food choices.

Taxes Taxes have the ability to alter consumer behavior by making foods more or less expensive than
other alternatives. For example, a higher tax on soda or junk food might dissuade consumers from making
that purchase whereas a reduced tax rate on healthier foods may entice consumers to make that purchase.

Most states already reduce taxes on food for home consumption—this should be encouraged in all states
and may be an area where food policy councils can effect meaningful change. For example, in Georgia,
food and beverages sold for home consumption are exempt from the state’s 4% sales tax, but may be
subject to local county sales taxes.43 Mississippi and Alabama, however, currently offer no offsets or
reductions of the sales tax that applies to food as compared to other consumer goods. 44 Taxes on grocery

38
   Food Labeling and Nutrition Overview, UNITED STATES DEP’T OF HEALTH & HUMAN SERV., FOOD & DRUG ADMIN.,
http://www.fda.gov/Food/LabelingNutrition/default.htm (last visited Oct. 2, 2012).
39
   Patient Protection and Affordable Care Act of 2010, Pub. L. No. 111-148, § 4205, 124 Stat. 119 (2010) (codified at 21 U.S.C. §
343(q)(5)(H) (2012)).
40
   Id.
41
   See Section I: General Legal Setting for more information about the California law.
42
   Patient Protection and Affordable Care Act of 2010, Pub. L. No. 111-148, § 4205, 124 Stat. 119 (2010) (codified at 21 U.S.C. §
343(q)(5)(H) (2012)).
43
   FY 2012: A Tax Guide for Georgia Citizens, GA. DEP’T OF REVENUE 2 (2012), https://etax.dor.ga.gov/taxguide/7-10-
12__2012_Tax_Guide.pdf.
44
   Which States Tax the Sale of Foods for Home Consumption in 2009?, CTR. ON BUDGET AND POLICY PRIORITIES,
http://www.cbpp.org/cms/?fa=view&id=1230 (last visited Oct. 3, 2012).


                                                                                           Consumer Access & Consumer Demand | 61
items affect low-income consumers more heavily, as these taxes make up a larger proportion of their
monthly income compared to a consumer with higher income.

States looking to encourage healthier eating habits also have the option of introducing or raising taxes on
unhealthy foods. These types of initiatives have gained notoriety among some consumers and food industry
groups, and have been quite controversial. However, as scientific evidence of the dangers of eating diets
high in sugar and processed foods grows, states may see these ―junk food taxes‖ or taxes on soda or sugar-
sweetened beverages as a way to change consumer eating habits.45 A number of states, such as Hawaii and
Mississippi, have proposed legislation that would increase taxes on soda, and an even greater number of
cities have considered this kind of legislation.46 It is important to find out whether your state has introduced
a junk food or sugar-sweetened beverages tax in the past. If so, learn what obstacles stood in the way of
passage of the bill, so that those things can be addressed should your food policy council try to introduce
similar legislation again.

Bans Another way to change consumers’ food purchases is through an outright ban of a specific food or
ingredient. New York City made headlines in September 2012 when Mayor Bloomberg announced a city-
wide ban on sweetened drinks in containers 16-oz. or larger.47 The ban was approved by the Health Board
and is scheduled to go into effect in March 2013.48 Additionally, California banned trans fat from food
products made in the state, but the ban is subject to some exceptions.49 Several other cities and counties
have also enacted trans fat bans over the past few years. If banning certain foods is a route that state food
policy councils would like to explore, it would probably be most effective to advocate for the banning of
certain ingredients that are proven to be harmful, or to push for limits on the amount a certain ingredient
can be used in a food item.

CONCLUSION State food policy councils can work to increase consumer access to healthy foods by
advocating for states to increase funding for healthy food retailers, such as grocery stores, farmers markets,
community gardens, and mobile vendors. In conjunction with adding more retail options, state food policy
councils can advocate for improving transportation to retail stores and making cities more walkable and
bike-friendly. State food policy councils can also boost consumer demand for these healthy foods through
the use of labeling, taxes, and bans.




45
   Anemona Hartocollis, Failure of State Soda Tax Plan Reflects Power of an Antitax Message, N.Y. TIMES, July 2, 2010, available at
http://www.nytimes.com/2010/07/03/nyregion/03sodatax.html?pagewanted=all.
46
   Duane D. Stanford, Anti-Obesity Soda Tax Fails as Lobbyists Spend Millions: Retail, BLOOMBERGBUSINESSWEEK.COM, Mar. 13, 2012,
http://www.businessweek.com/news/2012-03-13/anti-obesity-soda-tax-fails-as-lobbyists-spend-millions-retail#p1.
47
   Michael M. Grynbaum, Health Panel Approves Restriction on Sale of Large Sugary Drinks, N.Y. TIMES, Sept. 14, 2012, at A24, available at
http://www.nytimes.com/2012/09/14/nyregion/health-board-approves-bloombergs-soda-ban.html.
48
   Id.
49
   According to the California Health and Safety Code, ―commencing January 1, 2011, no food containing artificial trans fat . . . may be stored,
distributed, or served by, or used in the preparation of any food within, a food facility.‖ Food that is sold or served in the manufacturer’s
original, sealed packaging is exempt from this law. This ban also does not apply to public school cafeterias. CAL. HEALTH & SAFETY CODE §
114377 (2012); CALIFORNIA CONFERENCE OF DIRECTORS OF ENVIRONMENTAL HEALTH, CALIFORNIA TRANS FAT BAN GUIDELINES (2010),
http://cchealth.org/eh/retail_food/pdf/ab97_transfat_ban_guidelines.pdf; Jennifer Steinhauer, California Bars Restaurant Use of Trans Fats,
N.Y. TIMES, July 26, 2012, http://www.nytimes.com/2008/07/26/us/26fats.html.


                                                                                              Consumer Access & Consumer Demand | 62
SECTION VI: FARM TO INSTITUTION
Farm to institution programs facilitate transactions between local farms and institutions responsible for feeding large amounts of
people, such as schools, universities, prisons, and hospitals. Food policy councils can advocate for state governments to adopt official
procurement policies that favor locally produced foods for use by state agencies and public institutions. These programs host a variety
of benefits, ranging from providing economic support to local farmers to supplying consumers with fresh, local food, to creating
educational opportunities concerning nutrition and local agriculture.

OVERVIEW          Farm to institution programs connect institutional food providers—such as schools,
universities, hospitals, and prisons—with local farmers. Farm to institution programs create a host of
benefits for all parties involved by providing farmers with new markets for their products and providing
consumers with fresh, nutritious, and locally sourced foods. Further, they can provide participants with
information concerning local agriculture, nutrition, and food policy. States have control over the
procurement policies that are used by entities utilizing state money (such as state agencies, and, in some
cases, state colleges and universities). Food policy councils can increase the sale and consumption of locally
produced foods by advocating for state procurement preferences for local foods and encouraging the
development and expansion of farm to institution programs.
1. What is Farm to Institution? Farm to institution programs entail institutions that feed large
groups of people purchasing locally produced foods to use in their operations. This section provides an
overview of farm to institution programs and describes the many benefits of such programs.
2. Farm to State Agencies Food policy councils can advocate for state procurement policies that
support local farmers and provide state agencies access to fresh, local foods. State agencies are an ideal place
for farm to institution initiatives because states have authority to determine agency procurement policies.
3. Farm to School ―Farm to school‖ refers to programs connecting schools from kindergarten through
12th grade to local farms with the dual purpose of supporting local farmers and providing students with
healthy food and educational opportunities.
4. Farm to University Programs For public universities, the state government can have an
important role in incentivizing or mandating farm to university programs. Because universities provide a
significant number of meals to students, the demand for food is high and such programs provide a great
opportunity for local and regional producers to access that market.
5. Farm to Other Institutions Other institutions, such as hospitals and prisons, are also places to
which state food policy councils can direct advocacy efforts in order to increase purchases of local food.

WHAT IS FARM TO INSTITUTION? The term ―farm to institution‖ refers to programs in which
local farms sell their products to institutions that feed large numbers of people. Specific types of farm to
institution programs include farm to school, farm to prison, farm to university, farm to hospital, and farm
to state government (such as state agencies, departments, and legislatures).

All of these programs have multiple benefits:
   Consumers benefit because of increased access to fresh, nutritious food produced locally.




                                                                                                              Farm to Institution | 63
     School children benefit from the involvement of
      farmers in directly supplying schools with food and                                   PROCUREMENT POLICIES
      providing educational opportunities related to                              Farm to institution program advocacy
      agriculture, nutrition, and science, among other                            efforts are often focused on changing an
      fields.1                                                                    institution’s procurement policies. The term
                                                                                  ―procurement policies‖ refers to an entity or
     Institutions gain the advantage of cutting the ―middle                      agency’s guidelines for how it obtains
      man‖ out of the procurement process, at least for                           materials it needs (including food), how
      those foodstuffs they are able to obtain from local                         different vendors can compete for its
      farms, which can potentially reduce the price per                           business, and from where it purchases these
      serving while allowing farmers to receive payment for                       various materials.
      the full value of their products.2                                          Local school districts and municipal
     Farmers benefit by connecting with high-volume                              governments have their own procurement
      customers paying fair market prices for their products.                     policies, and these policies can favor locally
      This relationship encourages local farmers to increase                      produced goods as long as the applicable
      their production, which will help get fresh, healthy                        rules are met (for example, the federal rules
      foods into more local institutions as well as in the                        for school meals, in the case of school
      hands of more local consumers through other outlets                         districts). State universities, however, do
                                                                                  not have to worry about meeting federal
      like farm stands and farmers markets.
                                                                                  school meal rules.
     Communities and states benefit from farm to
                                                                                  For state agencies, the state government has
      institution programs because they keep economic
                                                                                  the authority to dictate the procurement
      activity close to home and help make local agriculture                      policies that are used, because each agency is
      economically viable.3                                                       an arm of the state government itself.

In short, more locally produced food in institutional kitchens                    Setting state procurement policies that
                                                                                  encourage and enable more local food
means healthier citizens and healthier farms.
                                                                                  purchasing can make a big difference in
                                                                                  helping to support local food production
The state of Washington has been a leader in promoting                            and increasing the amount of fresh fruits and
farm to institution programs. The purpose of Washington’s                         vegetables available throughout the state.
Local Farms-Healthy Kids Act of 2008 was to make
Washington-grown food available to as many Washington
citizens as possible.4 Even though it deals with several different policy areas, not just procurement, it is
useful as an example of a comprehensive policy supporting local food. The Act’s provisions include:
   State funding for low-income schools to purchase fresh, local food.
   Launch of a statewide farm to school program, housed within the state Department of Agriculture.
    A pilot ―Farmer to Food Bank‖ program to enable food banks to partner with local farmers to receive
       fresh produce.5

In order to be most efficient in farm to institution advocacy efforts, food policy councils must understand
who makes the vital decisions on procurement issues. There are often many layers of decision-making

1
  See generally NATIONAL FARM TO SCHOOL NETWORK, http://www.farmtoschool.org/index.php (last visited Oct. 3, 2012).
2
  10 Reasons to Buy Local Food, FARM TO SCHOOL, http://www.farmtoschool.org/files/publications_218.pdf (last visited Oct. 3, 2012).
3
  Id.
4
  Local Farms-Healthy Kids Act of 2008, WASH. REV. CODE ANN. § 15.64.060 (2012); Local Farms – Healthy Kids, THE WASH. SUSTAINABLE
FOOD & FARMING NETWORK, http://wsffn.org/our-work/local-farms-healthy-kids (last visited Oct. 3, 2012).
5
  See id.


                                                                                                               Farm to Institution | 64
responsibility when it comes to public institutions’ procurement decisions. Schools serve as a good example
of the layers of decision-making responsibility, which include:
   The federal government, which requires that schools serve children certain types of foods.
   The state department of education, which makes big, statewide decisions about how public schools
       should operate.
   School districts with local school boards that make big-picture decisions on a district level.
   The schools themselves, which principals and other administrators run on a day-to-day basis.
   School food service directors who run the daily cafeteria operations.

Each level of administration makes various decisions about the school’s cafeteria operations. The same
multi-layered decision making is true for other state institutions. Therefore, it is important that advocates at
the state level understand what powers the legislature and other statewide authorities have in making
institutional food and nutrition decisions before crafting an advocacy plan.

                                             THE DORMANT COMMERCE CLAUSE
  A state’s ability to discriminate against out-of-state products in favor of those produced in-state is subject to a
  doctrine known as the Dormant Commerce Clause. As discussed above in Section I: General Legal Setting,
  certain powers are given to the federal government by the Constitution. One of these dedicated federal powers
  is the power to regulate interstate commerce. Because only the federal government can regulate interstate
  commerce, the Constitution does not allow a state to give preferential treatment to businesses within its borders
  because that would hinder interstate commerce by giving those businesses an unfair competitive advantage
  against out-of-state businesses, who have the same right to access the state’s market.
  For the purposes of food policy councils, there are two important caveats to keep in mind: the Dormant
  Commerce Clause does not apply (1) to intrastate commerce (that is, where goods and commerce do not cross
  state lines); and (2) when states act as ―market participants‖ (as opposed to regulators) by directly buying (or
  selling) goods themselves. Thus states can craft legislation that prefers local goods or products without running
  afoul of the Dormant Commerce Clause. Keep in mind that as yet there have not been any Dormant Commerce
  Clause challenges to local preference laws, even though most states have laws that prefer local foods, so these
  points are just cautionary ones for advocates to remember as they work to shape state laws.
  Source: see Gabe Johnson-Karp, Local Food Systems and the Reawakening of Republicanism, MARQUETTE UNIVERSITY LAW SCHOOL FACULTY
  BLOG (May 31, 2011), http://law.marquette.edu/facultyblog/2011/05/31/local-food-systems-and-the-reawakening-of-
  republicanism/.




FARM TO STATE AGENCIES State agencies are a great place for state food policy councils to work
to increase local food procurement. Many state agencies buy food products in bulk, and may serve food in
various settings to their clients, to state employees or other individuals during conferences and other
events, or to state agency staff working on their premises. As governmental entities, they have the ability to
set a positive example by purchasing and serving healthy and/or local food whenever possible. Most
importantly, the state government has control over all state agency policies, so food policy councils can
advocate that the state enact laws requiring state agencies to prefer local and/or healthier food options.

There are a number of ways states can increase the amount of local food procurement in state agencies;
below are some examples:



                                                                                                              Farm to Institution | 65
     Mandated Percent Price Preference: Under a
          percent price preference law, state agencies are required
                                                                                    GEOGRAPHIC PREFERENCE
          to purchase locally-produced food when the cost of such
          food is within a certain percentage of the price of similar Geographic preference refers to any policy
          food from conventional sources. Advocates can look to or initiative in which a school or other
          Alaska for an example of such a law: there, any state institution seeks to purchase food from
                                                                             farms and producers within a certain
          entity or school district receiving state money must
                                                                             geographic proximity by making it easier
          purchase its agricultural products from farms within the for such local producers to meet its bids.
          state as long as the in-state product costs no more than Geographic preference policies ensure that
          7% above similar out-of-state products and the in-state fresher foods are available to students or
          product is of the same quality.6 Another example of clients while helping local, often small-
          percent price preference laws is found in scale farmers, find a stable market for their
          Massachusetts, which requires all state agencies goods.
          purchasing ―agricultural products‖ (defined to include Schools and institutions can implement a
          processed foods and seafood) to prefer products grown geographic preference by taking into
          in the state or end products made using products grown account the location of origin of foods in
          in the state.7 When given the choice between the bidding process or by giving a percent
          Massachusetts-produced products and those from out of price preference to locally grown foods,
          state, state agencies are required to buy the local making their bids prices comparatively
          products as long as they are not more than 10% more cheaper than those of non-local foods.
          expensive than the out of state choices.8
                                                              Discretionary Geographic Price Preference
                                                           or General Geographic Preference: Under a
        NUTRITIONAL STANDARDS FOR FOODS                    discretionary geographic preference law, states can
     PURCHASED OR SERVED BY STATE AGENCIES                 specify that state agencies have discretion to spend more
                                                           on local products than out-of-state products. Here, state
    In addition to laws preferring local foods, states
                                                           agencies are not required to purchase local food products,
    may pass laws that require foods purchased or
    served by state agencies to meet certain               but are allowed to do so, even if the local products cost
    nutritional guidelines. These nutritional              more. In a 2007 comprehensive local procurement
    standards can follow the USDA/HHS federal              statute, Montana gave broad discretion to decision-
    dietary guidelines or can be set specifically for      makers in all state institutions—agencies, schools,
    state agencies. In Massachusetts, Governor             prisons, universities, hospitals, etc.—to purchase
    Deval Patrick issued an executive order                Montana-produced food directly from farmers and other
    requiring that all state agencies within the           producers rather than going through the state’s standard
    Executive Department that purchase or serve            procurement procedures.9 The law also allows state
    food follow nutrition standards set by the state       institutions to accept an in-state bid over an out-of-state
    Department of Public Health.                           bid even where the in-state bid is more expensive, as long
    Source: Mass. Exec. Order No. 509 (2009), available at as the difference in price is ―reasonable.‖10 Under this
    http://www.mass.gov/governor/legislationeexecorder/
    executiveorder/executive-order-no-509.html.
                                                           law, institutional decision-makers have significant leeway
                                                           to choose local products—so much so that the definition


6
  ALASKA STAT. ANN. § 36.15.050(a) (2012). Other states have also enacted percent price preference laws, including Wyoming (WYO. STAT.
ANN. § 16-6-105 (2012).
7
  MASS. GEN. LAWS ch. 7, § 23B(a) (2012).
8
  Id. § 23B(c).
9
  MONT. CODE ANN. § 18-4-132 (2012).
10
   Id. § 18-4-132(4)(a)(iii).


                                                                                                               Farm to Institution | 66
       of whether a price difference is reasonable is left to the
       institutional decision makers’ discretion.11                          FARM TO WORK PROGRAMS
      Target Percentage of Local Food Purchases:
                                                                      The Texas Department of State Health
       Under a target percentage law, a certain percentage of Services hosts a ―Farm to Work
       all food purchases must be from local vendors. This type Initiative,‖ in which employees can order
       of law allows the state agency to decide how it will meet a basket of fresh produce from a local
       the percent requirement. Illinois’ Local Food, Farms, farm to be delivered to their workplace.
       Jobs Act of 2009 set a goal that all state institutions This innovative idea does not involve
       purchase at least 20% of their food from local sources by procurement policies, but serves the same
       2020.12 Similarly, the New York Senate introduced goal of increasing opportunities for the
       (but has not yet passed) the ―Buy from the Backyard Act‖ state and local businesses to support local
       in 2012, which would require all state agencies to food production.
       purchase at least 20% of their food from producers Source: Farm to Work Initiative, TEX. DEP’T OF STATE
       and/or processors in New York State.13 These laws have HEALTH SERVICES,
                                                                      http://www.dshs.state.tx.us/obesity/nutritionfar
       the benefit of simplicity: agencies have discretion to mtowork.shtm (last visited Oct. 22, 2012).
       choose exactly which 20% of their food is purchased in-
       state, but they are mandated to buy a certain amount of
       local food in bulk.
      Resolution or Statement of Support of Local Purchases: States can also encourage increased
       procurement of local food without expending resources or altering regulations. A state legislature
       could pass a resolution expressing its support for increased local procurement, or a state food policy
       council or state legislature could launch a ―10% campaign‖ wherein state agencies, public and private
       institutions, restaurants, and retail establishments are encouraged to buy 10% of their food from local
       sources.14 North Carolina established a 10% campaign, and as of October 2012, the campaign had
       achieved $25 million in local food purchases.15 This option has the advantage of establishing a
       quantifiable goal for all institutions and expanding the support of local food into the private sector. 16
       It can also increase community support for using local products in a variety of settings, including
       schools.17

State food policy councils have a number of innovative mechanisms to choose from when advocating to
increase the amount of local food purchased and used by state agencies. The percent price preference is
likely the strongest option because it mandates purchasing local food and though it may impose some
additional costs on state agencies, those costs are likely not unreasonable because they are limited by the
upper limit of the price preference. State food policy councils may want to implement a combination of
these mechanisms; for example, the discretionary geographic preference that gives agencies the authority to
spend more money on local food products, combined with a target percentage of local purchases or a

11
   Id.
12
   Governor Signs Legislation Putting Illinois on Track to Vastly Expanded Local Farm Economy, FAMILYFARMED.ORG (2010),
http://www.familyfarmed.org/governor-signs-legislation-putting-illinois-on-track-to-vastly-expanded-local-farm-economy/.
13
   S.B. 2468-2011, 2012 Reg. Sess. (N.Y. 2012). The bill was referred to the State Assembly and referred to that body’s Agriculture
Committee on March 19, 2012. It has not moved past that point in the legislative process as of Oct. 4, 2012. See SB2468-2011: Enacts the “buy
from the backyard act”, N.Y. S. OPEN LEGIS., http://open.nysenate.gov/legislation/bill/S2468-2011 (last visited Nov. 2, 2012).
14
   Ona Balkus et al., Legislative Recommendations for a Statewide Farm-to-School Bill in Mississippi, HARVARD LAW SCH. MISS. DELTA PROJECT 9 (Nov.
2011), available at http://blogs.law.harvard.edu/foodpolicyinitiative/files/2011/09/FTS-legis-recs-FINAL-12-5.pdf.
15
   The 10% Campaign, NORTH CAROLINA STATE UNIV., http://www.ncsu.edu/project/nc10percent/index.php (last visited Oct. 22, 2012).
16
   Ona Balkus et al., Legislative Recommendations for a Statewide Farm-to-School Bill in Mississippi, HARVARD LAW SCH. MISS. DELTA PROJECT 9 (Nov.
2011), available at http://blogs.law.harvard.edu/foodpolicyinitiative/files/2011/09/FTS-legis-recs-FINAL-12-5.pdf.
17
   Id.


                                                                                                                       Farm to Institution | 67
memorandum or resolution supporting local food producers (such as a 10% campaign), would give agencies
flexibility in how they achieve a higher percentage of local purchasing while ensuring that over time they
increase their support for the local food system.



                                    KEY FEATURES OF MONTANA’S PROCUREMENT LAW
     In its 2007 comprehensive local procurement statute, Montana gave broad discretion to state agencies and
     institutions to increase their purchases of local food.
     (1) The law gives broad authorization for state institutions to prefer in-state food in their purchasing plans.
     This feature serves to enable and encourage the purchase of local food products and costs the state nothing.
      (2) The law allows institutions to pay more for in-state food than they would for products from other
     sources. While this provision does potentially cost the state money, the potential additional cost of local food
     is an investment in the state’s own farmers and local food producers, supporting the future of the state’s food
     system as well as providing a great opportunity for economic development. Advocates can point out that a
     little more money staying in the state is preferable to a little less going elsewhere.
     (3) Montana does not force institutional decision-makers to overcome a number of bureaucratic hurdles in
     order to choose local food; rather, they can make these decisions essentially on their own and can go outside
     of the official procurement process, which breaks down some of the barriers for local food vendors. This
     encourages institutions to take full advantage of the local procurement powers granted to them.
     Source: MONT. CODE ANN. § 18-4-132 (2012).




FARM TO SCHOOL               The most often talked-about type of farm to institution program is farm to
school. ―Farm to school‖ refers to programs connecting schools from kindergarten through 12th grade to
local farms with the dual purpose of supporting local farmers and providing students with healthy food and
educational opportunities.18 Farm to school programs have been shown to have a variety of benefits,
including but not limited to:
   Reducing hunger and obesity by providing fresh, healthy food to children;
   Lessening costs to school food budgets by providing minimally processed, local, seasonal foods that
       cost less to produce, cut out the middle man, and reduce transportation costs, and therefore sell for
       less money;
   Supporting the state’s economic development and creating jobs in the agricultural sector;
   Decreasing emissions and environmental harms related to food production by reducing distances food
       must travel from farm to plate; and
   Improving kids’ and families’ understanding and awareness of issues surrounding food, agriculture,
       nutrition, and the environment.19




18
   About Us: Nourishing Kids and Community, NAT’L FARM TO SCHOOL NETWORK, http://www.farmtoschool.org/aboutus.php (last visited Oct. 3,
2012). Farmtoschool.org is a great overall resource for food policy councils seeking more information.
19
   Id.


                                                                                                              Farm to Institution | 68
Whether states have delegated a lot or a little authority over schools to their local governments, states still
have a role in shaping farm to school programs. They can enable such programs by reducing restrictions on
how schools spend their money or by specifically authorizing farm to school programs, and they can
encourage these programs in a variety of ways, including setting up statewide farm to school initiatives.

Low-Cost State Opportunities to Foster & Promote Farm to School Programs
Advocates can push for state decision-makers to adopt policies that encourage farm to school programs.
While many such policies impact the state budget, there are several low-cost and immediate ways states can
make a major impact on communities’ awareness of their options for adding fresh, local foods to school
meals, such as:
  Create a State Farm to School Week: Creating a state farm to school week encourages schools to
      add locally produced farm products to school menus for a given week. These temporary or one-time
      purchases can build relationships between schools and farmers that can lead to more long-term
      purchasing arrangements.20 Many states have such programs and have implemented them creatively.
      For example, Maryland’s Department of Agriculture funds a Farm to School Week kick-off
      celebration at a local school, during which state and local officials visit the school for a healthy meal
      made from local foods in the school cafeteria.21 Maine’s State Department of Education has posted
      enticing online descriptions of the menus for its Maine Lunch Harvest Week, including personalized
      information about the various local farms that produced the featured ingredients.22
  Pass a Legislative Resolution or Memorial Statement: A second low-cost (free, actually) way
      for legislatures to raise awareness about farm to school is with a resolution or memorial statement.23
      Common among legislative bodies everywhere, these resolutions and memorial statements are non-
      binding, non-legal statements of the legislature expressing support for certain causes or programs,
      such as farm to school programs. Their main value in the farm to school context is to raise awareness
      about farm to school and encourage local decision-makers to look into establishing farm to school.24
      New Mexico’s farm to school memorial statement asserts that state schools should serve in-state
      products to the extent possible, and it has helped lead to more concrete commitments to farm to
      school programs around the state.25 Mississippi passed a legislative resolution supporting farm to
      school in 2012; its resolution was combined with language creating an annual farm to school week,
      similar to what is described above.26
  Form an Interagency Farm to School Task Force: Another simple, low-cost option for states
      interested in promoting farm to school programs is to establish an inter-agency farm to school task
      force.27 This task force would gather representatives from various state agencies that control policies
      that impact farm to school, such as the departments of agriculture, education, and public health, to


20
   Ona Balkus et al., Legislative Recommendations for a Statewide Farm-to-School Bill in Mississippi, HARVARD LAW SCH. MISS. DELTA PROJECT 9 (Nov.
2011), available at http://blogs.law.harvard.edu/foodpolicyinitiative/files/2011/09/FTS-legis-recs-FINAL-12-5.pdf.
21
   News Release: Officials Kick-off Maryland Homegrown School Lunch Week, MARYLAND DEP’T OF AGRIC. (Sept. 9, 2011),
http://www.mda.state.md.us/article.php?i=35385.
22
   Local Foods to Local Schools: Me. Harvest Lunch Announcements for Elementary Schools, MAINE DEP’T OF EDUC. CHILD NUTRITION,
http://www.maine.gov/education/sfs/farm.html (last visited Oct. 3, 2012).
23
   Ona Balkus et al., Legislative Recommendations for a Statewide Farm-to-School Bill in Mississippi, HARVARD LAW SCH. MISS. DELTA PROJECT 11
(Nov. 2011), available at http://blogs.law.harvard.edu/foodpolicyinitiative/files/2011/09/FTS-legis-recs-FINAL-12-5.pdf.
24
   Id.
25
   New Mexico Profile, NAT’L FARM TO SCH. NETWORK, http://www.farmtoschool.org/NM/ (last visited Oct. 3, 2012).
26
   H.R. 112, 2012 Leg. Sess. (Miss. 2012).
27
   Ona Balkus et al., Legislative Recommendations for a Statewide Farm-to-School Bill in Mississippi, HARVARD LAW SCH. MISS. DELTA PROJECT 11
(Nov. 2011), available at http://blogs.law.harvard.edu/foodpolicyinitiative/files/2011/09/FTS-legis-recs-FINAL-12-5.pdf.


                                                                                                                       Farm to Institution | 69
       strategize about how best to go about increasing farm to school relationships across the state.28 At
       least seven states have farm to school task forces, including Colorado.29 Colorado’s task force was
       created by the state’s General Assembly to ―study, develop, and recommend policies and methods to
       best implement a Farm to School program‖ and has since created a roadmap aimed at achieving
       ―collaborative, sustainable implementation of farm to school statewide.‖30 Its next task is to formulate
       specific tasks to fulfill these goals.31 Creating an interagency task force can be incredibly productive,
       as it helps to ensure that all the relevant agencies are on the same page regarding the information they
       give out to farmers and schools, and that they are breaking down any unnecessary regulatory barriers
       standing in the way of creating successful farm to school relationships.
      Set Target Local Procurement Goals for
       Schools: A state can also simply set local
       procurement goals for school districts. For                     COMPARE STATES: SMALL PURCHASE
       example, Illinois has set a goal for its schools                              THRESHOLDS
       that they obtain 10% of their food from local
       sources by the year 2020.32 If such goals are set, a According to federal law, school districts can
       state agency or interagency task force should be make purchases under $150,000 without utilizing
                                                                 the formal bidding process. However, states set
       responsible for monitoring implementation of the their own small purchase thresholds.
       goals so that the state can ensure that the school
       districts are held accountable for their In the 2007–2008 school year, Michigan’s small
       performance.                                              purchase threshold was $19,650. In 2008, the
                                                                 Michigan legislature passed a bill to increase the
      Increase the State Small Purchase small purchase threshold for school meals to
       Threshold: A state can also encourage the use $100,000.
       of local food in schools by raising its small
                                                                 Massachusetts’s procurement law, on the
       purchase threshold. A food purchase that qualifies other hand, sets the small purchase threshold for
       as a ―small purchase‖ is one for which the school         food items at only $25,000.
       district is not required to go through the formal
       bidding process.33 This makes it easier for small Sources: Memorandum from Colleen Matts & Betty Izumi,
                                                                 C.S. Mott Group for Sustainable Food Systems at Michigan
       farms to sell their products to schools because State University, Small Purchase Threshold Considerations (Apr.
       they avoid incurring administrative costs.34 10, 2008),
       Federal law currently allows a district accepting http://www.fbcmich.org/site/DocServer/Small_Purchase.
                                                                 _Threshold_Considerations.pdf?docID=1242; MICH. COMP
       federal funding for school meals to consider any LAWS ANN. § 380.1274(4) (West 2012); MASS. GEN. LAWS
       purchase below $150,000 a ―small purchase,‖35 ch. 30B § 4(d) (2012).
       but some states set their standards lower.36 For
       example, the small purchase threshold for food

28
   Id. at 11-12.
29
   Id. at 12.
30
   Colorado Farm to School Task Force, COLO. FARM TO SCH., http://coloradofarmtoschool.org/colorado-farm-to-school-task-force/ (last visited
Oct. 3, 2012).
31
   Id.
32
   Governor Signs Legislation Putting Illinois on Track to Vastly Expanded Local Farm Economy, FAMILYFARMED.ORG (2010),
http://www.familyfarmed.org/governor-signs-legislation-putting-illinois-on-track-to-vastly-expanded-local-farm-economy/.
33
   Ona Balkus et al., Legislative Recommendations for a Statewide Farm-to-School Bill in Mississippi, HARVARD LAW SCH. MISS. DELTA PROJECT 18–19
(Nov. 2011), available at http://blogs.law.harvard.edu/foodpolicyinitiative/files/2011/09/FTS-legis-recs-FINAL-12-5.pdf.
34
   Id. at 19.
35
   41 U.S.C. §134 (2012); 7 C.F.R. §§ 3016.4(b) (applying these regulations to entitlement programs, including school meals), 3016.36(d)
(allowing small purchases under $100,000 to follow informal procurement procedures) (2012).
36
   The federal government recently increased the small purchase threshold from $100,000 to $150,000 in order to allow more transactions to
go through the informal procurement process. Memorandum from the U.S. Dep’t of Agriculture Food & Nutrition Service (Oct. 2, 2012),
http://www.fns.usda.gov/cnd/Care/Regs-Policy/policymemo/2013/SP01_CACFP01_SFSP01-2013.pdf.


                                                                                                                       Farm to Institution | 70
        items in Massachusetts is only $25,000.37 States with thresholds lower than the federal level should
        be encouraged to raise their thresholds so as to improve local farmers’ ability to sell food to schools
        without dealing with a formal bidding process.

State Financial Support for Farm to School Programs Despite support at the state level,
there are still various barriers to implementing farm to school programs at the local level. One of the major
barriers is financial: in the short term, transitioning to the purchase of local foods can be more costly than
continuing to purchase foods in bulk from distributors who may be sourcing food products from all over the
country or the world. State legislatures that are willing to put money into supporting farm to school can
spend a small amount that can go a long way. States can support farm to school programs through grants
that allow the schools to craft their own programs or by creating and funding a position for a state farm to
school director who would oversee farm to school programs within the state.

For example, states can invest in farm to school programs by supporting local geographic preference policies,
similar to Alaska’s percent price preference scheme referenced above, which requires state entities
receiving state money to purchase in-state agricultural products when the in-state products are not more
than 7% more expensive than similar out-of-state products.38 The most common type of geographic
preference policy awards a percent price preference to local farmers or producers by equating geographic
proximity to a decrease in price on the bid, thus making local foods less expensive comparatively so that
they win the bid, but ultimately forcing the school to pay more money for the food products if the local bid
was in fact more expensive than the out-of-state bid.39 While at first this may mean spending more on
school food because local vendors may be more costly in the short term, increasing the purchase of local
foods through school procurement can ultimately reduce the price of these foods over time by allowing
local farmers to scale up their production, creating new economies of scale and decreased prices in the long
term.40 One way for states to encourage geographic preference policies is by helping school districts cover
the initial increased cost of buying local food. Additionally, schools participating in the National School
Lunch and Breakfast Programs and receiving federal reimbursements for their meals are now allowed and
encouraged to utilize geographic preferences (preferring produce from within the state or within a certain
number of miles from the school) in their food procurement policies.41

There are a few specific options that state governments can take to financially support the increase in local
procurement and the growth of farm to school programs:
   Provide Financial Incentives via Grants: One way to strongly support farm to school programs
     in the state is to provide financial incentives for school districts to buy food from local farmers. An
     excellent example of this approach is the Illinois Farm Fresh Schools Act, which offers financial
     assistance in the form of state grants.42 The Act established a special fund to which local schools can
     apply for grants to implement local farm to school programs.43 Its stated goals are to reduce obesity,


37
   MASS. GEN. LAWS ch. 30B, § 4(d) (2012).
38
   See ALASKA STAT. ANN. § 36.15.050 (2012).
39
   Geographic Preference Option for the Procurement of Unprocessed Agricultural Products in Child Nutrition Programs, 76 Fed. Reg. 22,603
(Apr. 22, 2011).
40
   Ona Balkus et al., Legislative Recommendations for a Statewide Farm-to-School Bill in Mississippi, HARVARD LAW SCH. MISS. DELTA PROJECT 18–19
(Nov. 2011), available at http://blogs.law.harvard.edu/foodpolicyinitiative/files/2011/09/FTS-legis-recs-FINAL-12-5.pdf.
41
   42 U.S.C. § 1758(j) (2012); Geographic Preference Option for the Procurement of Unprocessed Agricultural Products in Child Nutrition
Programs, 7 C.F.R. § 22603-01 (2012).
42
   105 ILL. COMP. STAT. ANN.124/15 (2012).
43
   Id. at 124/15-20.


                                                                                                                     Farm to Institution | 71
       improve nutrition in schools, and improve local
       farmers’ access to purchasers.44 By making
                                                                     STATE FARM TO SCHOOL DIRECTOR
       funds available through a grant application
       process, the state requires school districts to lay Perhaps the most important factor in establishing
       out how they would go about spending the an effective farm to school program is to have a
       money before they can access funds. For statewide entity oversee the initiative. One of the
       instance, districts may explain that they will use most-cost effective ways for a state to achieve this
       the funds to help pay the startup costs associated is to hire a single person to oversee the state’s farm
                                                             to school efforts. This person would facilitate
       with beginning a farm to school program, such
                                                             relationships between farmers and school
       as purchasing new kitchen equipment needed to administrators, seek to raise private funds for the
       prepare such food or defraying the costs of           program, and generally serve as a point person for
       potentially more expensive local purchases.           the whole system.
      Provide        Financial      Incentives       via Oklahoma’s state farm to school program is a
       Increased Reimbursements: State funds can great example. It has a full-time director who is
       also be used to reimburse school districts’           mandated to work with the state’s private (non-
       purchase of local foods after the fact rather than governmental) food policy council. No matter
       providing money up front.45 This approach has which version of a statewide initiative a state
       the advantage of allowing state authorities to chooses, placing some entity or person in charge of
       ensure that local food has actually been fostering farm to school is a vital way to make sure
       purchased before disbursing the funds, rather the state continues to make progress and that this
       than giving away the money and trusting that progress is monitored over time.
       the school districts will utilize it effectively. Sources: Ona Balkus et al., Legislative Recommendations for a
                                                                                     in Mississippi, HARVARD
       Oregon has such a reimbursement program, in Statewide Farm-to-School Bill(Nov. 2011), available atLAW SCH.
                                                             MISS. DELTA PROJECT 4–6
       which the state specifies that it will reimburse http://blogs.law.harvard.edu/foodpolicyinitiative/files/2011
       school districts that purchase foods produced or /09/FTS-legis-recs-FINAL-12-5.pdf; OKLA. STAT. ANN. tit.
       processed in Oregon.46 The state keeps costs 2, § 5-60.3 (2012).
       reasonable for this program by specifying that
       all reimbursements are set at the amount that reflects the lesser of either the amount actually paid for
       the Oregon-based product or fifteen cents per school lunch in which it was used.47
      Establish a Statewide Farm to School Initiative: In addition to the above suggestions, one of
       the strongest ways that states can support farm to school programs is by creating a statewide farm to
       school initiative. These initiatives take several forms, but the common thread is that the state (1)
       marshals resources and manpower to help provide training and support to schools and farms wishing
       to participate in a farm to school relationship and (2) actively coordinates farm to school programs
       around the state. Alaska passed legislation establishing a statewide farm to school program that
       coordinates with procurement officials to identify sources of local produce, helps to connect farmers
       with schools, and provides resources to support development of individual farm to school programs.48
       Washington also created a statewide farm to school initiative that funded a state farm to school




44
   Id. at 124/10.
45
   Ona Balkus et al., Legislative Recommendations for a Statewide Farm-to-School Bill in Mississippi, HARVARD LAW SCH. MISS. DELTA PROJECT 15–16
(Nov. 2011) available at available at http://blogs.law.harvard.edu/foodpolicyinitiative/files/2011/09/FTS-legis-recs-FINAL-12-5.pdf.
46
   OR. REV. STAT. ANN. tit. 30, § 336.431 (2012).
47
   Id. § 336.431(3).
48
   ALASKA STAT. § 03.20.100(b) (2012).


                                                                                                                       Farm to Institution | 72
        coordinator to serve as a point person for the implementation of farm to school programs throughout
        the state.49

Farm to school programs are vital to the growth of the local food movement. Not only do they provide
business to local farms and nutritious food to schools, they also demonstrate to children the many benefits
of eating fresh, local foods. The habits developed in school can help determine how strongly the next
generation will believe in supporting local food systems. As such, farm to school is one of the most
important legislative goals for food policy councils and other local food advocates. For more information on
how farm to school programs can be incorporated as an element of health and nutrition education, see
Section VII: School Food & Education.

FARM TO UNIVERSITY PROGRAMS Farm to university programs are very similar to farm to
school programs, but provide additional positive features as compared to farm to school programs. Like
farm to school programs, farm to university initiatives provide healthier foods to students and also offer the
potential for educational activity to result from the school’s relationship with local farmers. Students in
university settings where local food is part of the institution’s meal plan can also be introduced to issues
surrounding local food and agriculture in a dedicated educational setting.50 However, unlike elementary and
high schools, university foodservice providers serve many more students, and these dining halls tend to be
the sole source of the vast majority of their constituents’ meals.51 Because students using their universities’
meal plans eat so many of their meals on campus, a shift toward local food can have a major health impact
on students and a major economic impact on the local food system.

Farm to university is an area where state advocates can make an impact. State policies dealing with food
procurement at universities will generally affect public colleges and universities only. Private universities
are not required to follow state food procurement policies (because they are privately chartered and
funded). Because of this, state advocates asking state authorities for local food purchasing initiatives at
universities should remain aware that their efforts will primarily impact only public colleges. However, if
all the public universities in the state are showing success in purchasing and serving more local foods,
private colleges and universities will likely move to ramp up their local procurement practices as well.

There are several ways that states can encourage farm to university programs at public colleges and
universities, such as:
   Implementing a percent preference rule for colleges and universities. Under such a rule, colleges and
      universities would be required to buy local food any time the cost is within a certain percentage of the
      cost of the same food through conventional out-of-state channels.52
   Giving state colleges and universities authority to purchase local foods, even if they are more
      expensive. State schools may have to comply with their state’s procurement laws, which likely limit a
      school’s ability to spend more on local produce. This type of law would allow colleges to use their
      discretion to spend more on local foods.

49
   Washington State Department of Agriculture, Farm-to-School Program, http://agr.wa.gov/Marketing/Farmtoschool/ (last visited Nov. 4,
2012).
50
   Catherine H. Strohbehn and Mary B. Gregoire, Local Foods: From Farm to College and University Foodservice, IOWA ST. UNIV. 3, available at
http://www.extension.iastate.edu/NR/rdonlyres/B0D64A49-9FA9-410E-849A-
31865EFECE91/65253/manuscript2004003final_version.pdf.
51
   Id. at 2.
52
   See, e.g., ALASKA STAT. ANN. § 36.15.050 (2012).


                                                                                                                     Farm to Institution | 73
      Setting a local food purchasing target goal for state colleges and universities. Just like Illinois’ goal
       that schools purchase 10% of their food from local sources and state agencies purchase 20% from
       local sources by 2020, state food policy councils can advocate that state universities do the same.53
      Pass a nonbinding resolution or statement of support for colleges and universities to buy and serve
       local food, which would encourage private colleges and universities to purchase more local foods.

Some state colleges and universities have already implemented their own farm to university programs. State
food policy councils can use these innovative institutions as support for why states should pass legislation
encouraging, enabling, or mandating local food purchasing at the university level. The University of
Montana is one example of such a program. For nearly ten years it has had a farm to college program
dedicated to buying locally to feed the campus community.54 At present 15% of campus food comes from
producers from around the state.55 Similarly, Appalachian Food Services, at Appalachian State University in
North Carolina, bought 10% of its food from local producers in 2011 and set a goal of purchasing 15%
from local producers by 2013.56

FARM TO OTHER INSTITUTIONS Prisons, universities, and hospitals are also examples of large-
scale food purchasers who can develop mutually beneficial relationships with local farmers. Each type of
institution has unique characteristics and, as such, the types of farm to institution programs that would work
in the different institutions will certainly vary. However, they all have one important feature in common
that makes them attractive partners for farms: they are high-volume buyers that can provide local farmers
with a large, predictable, and desirable new market for their products.

Prisons Prisons provide meals on a daily basis and have the ability to serve as high-volume customers for
local farmers. In fact, a given prison utilizes far more food per capita than any single school; at most, a
school provides two meals a day, five days a week. A prison, on the other hand, provides three meals a day,
                                                       seven days a week.
           WORKING FARMS ON PRISON GROUNDS                            For prisons that are state institutions, the state
     Some prisons, such as the Mississippi State                      government has direct influence over the
     Penitentiary at Parchman, have farms of their own.               procurement policies. Most states have a state agency
     In a 2005 survey of adult correctional facilities, 16%           in charge of prisons (usually called the department of
     involved inmates in farming or related activities.               corrections) that could institute a farm to prison
     Prisoners work on the farm to help them develop                  program. State food policy councils can support
     skills for post-release jobs, and the foods produced
                                                                      increased farm to prison sales using a few different
     by the farm help to supply the prison with fresh,
     healthy meals.                                                   methods similar to those described above:
                                                                         Encourage the state to set target procurement
     Source: JAMES J. STEPHEN, CENSUS OF STATE AND FEDERAL
     CORRECTIONAL FACILITIES, 2005 (Bureau of Justice Statistics,     goals for local foods. In its Local Food, Farms, Jobs
     2008), available at                                              Act of 2009, Illinois set a goal that state
     http://bjs.ojp.usdoj.gov/content/pub/pdf/csfcf05.pdf.            institutions, including prisons, procure at least 20%

53
   Governor Signs Legislation Putting Illinois on Track to Vastly Expanded Local Farm Economy, FAMILYFARMED.ORG (2010),
http://www.familyfarmed.org/governor-signs-legislation-putting-illinois-on-track-to-vastly-expanded-local-farm-economy/.
54
   UM Farm to College, UNIV. OF MONT. DIV. OF STUDENT AFFAIRS, http://life.umt.edu/dining/farm_to_college/default.php (last visited Nov.
2, 2012).
55
   Greening UM: Farm to College, THE UNIV. OF MONT., http://www.umt.edu/greeningum/Operations/Food/Farm%20to%20College.aspx
(last visited Oct. 4, 2012).
56
   Local Food, APPALACHIAN STATE UNIV. FOOD SERV., http://foodservices.appstate.edu/sustainability/local-food (last visited Nov. 2, 2012).


                                                                                                                  Farm to Institution | 74
       of their food from local sources by 2020.57 Recall that, by contrast, Illinois’ goal for farm to school
       procurement was only 10% by 2020.58 The higher goal for state agencies recognizes that it may be
       easier for institutions like prisons to obtain more food from local sources than it is for schools.
      Push the state to implement a program for farmers to sell their produce to prisons for fair market
       value, which can reduce the work on farmers and also increase or at least match farmers’ usual take-
       home pay. The state of Washington has instituted a pilot program that is a partnership between the
       state Department of Agriculture and the state Department of Corrections.59 Washington farmers have
       the opportunity to sell food products to two prisons at their fair market value, as determined by the
       ―Seattle Terminal Market Value‖.60 In order to keep farmers’ costs down in terms of both time and
       money, they are encouraged to only field-pack their products; the Department of Corrections cleans,
       sorts, and processes the food within the prison facility.61 The state has designated two prisons to
       participate in the program.62 Farmers participating in the program can actually make better profits on
       their food than they would at a farmers market, despite selling products at the same price, because
       they can sell their produce without investing the cost in time, effort, and money to prepare these
       products for sale at market.
      Advocate that the state create a percent price preference that must be used by all state agencies, or at
       least those agencies (e.g. prisons) that serve food to members of the public as part of their operations.

Hospitals In addition to the environmental, nutritional, and economic benefits of farm to institution
programs, hospitals have another reason to be particularly interested in serving fresh, local food: hospitals
strive to promote health and well-being.63 As a general rule, however, hospitals have seen foodservice as an
opportunity to cut costs. Rather than further the institutional mission of promoting health, cafeterias and
vending machines in hospitals tend to offer fast food meals and junk food snacks.64 That said, some hospitals
are starting to realize the importance of their food procurement choices, and are beginning to purchase food
for patient and cafeteria meals from local farmers.65 One hospital in Vermont, Fletcher Allen Healthcare,
buys local foods and even brings in local chefs to the cafeterias to encourage the creation of new recipes.66
Partnering with local farmers offers an opportunity for hospitals to improve their food environments and
align their foodservice systems with their public health missions.67

State food policy councils should focus their advocacy efforts on public hospitals, where the state has some
authority over the procurement policies. State food policy councils can:
   Push the state to provide tax breaks for hospitals (both public and private) for increasing the amount
       of food procured locally.
57
   Governor Signs Legislation Putting Illinois on Track to Vastly Expanded Local Farm Economy, FAMILYFARMED.ORG (2010),
http://www.familyfarmed.org/governor-signs-legislation-putting-illinois-on-track-to-vastly-expanded-local-farm-economy/.
58
   Id.
59
   Washington State Farm-to-Prison Pilot, WASH. STATE DEP’T. OF AGRIC. (May 24, 2011), http://www.wafarmtoschool.org/Page/29/WSDA-
Farm-to-Prison.
60
   Id.
61
   Id.
62
   These are the Monroe Correctional Facility and the Stafford Creek Correctional Center. Id.
63
   Madison Park, Farmers Markets Bloom at Hospitals, CNN.COM, June 3, 2009,
http://www.cnn.com/2009/HEALTH/06/03/farmers.markets.hospitals/index.html.
64
   Farm to Hospital, CTR. FOR FOOD & JUSTICE, URBAN & ENVTL. POLICY INST., OCCIDENTAL COLL. 2,
http://www.foodsecurity.org/uploads/F2H_Brochure-Nov08.pdf (last visited Oct. 4, 2012).
65
   Id.
66
   This hospital pays a premium for some of its local, organic produce, but cuts down on high pricing for other foods such as milk by negotiating
deals as a large purchaser. The hospital also runs a composting program for its waste, which it sells back to the local community. Id. at 5.
67
   Id. at 2.


                                                                                                                      Farm to Institution | 75
      Encourage the state to provide grants to subsidize the startup costs of procuring more local products.
      Advocate that the state set target procurement goals for local foods that apply to public hospitals.

In addition to impacting the local food system by procuring local foods, hospitals can also benefit local
farmers by hosting farmers markets or community-supported agriculture organizations (CSAs) on their
grounds.68 In Oakland, California, Kaiser Permanente hosts a year-round farmers market on its grounds.69
Kaiser Permanente’s Oakland Farmers Market participates in the Market Match incentive program, which
provides a $5 bonus when customers purchase at least $10 in produce using CalFresh/SNAP EBT.70 While
hosting a farmers market or CSA may not directly impact patients’ nutrition during their stay at a hospital,
it does allow the hospital to further its health and
wellness mission in the community at large,71 and can       RESOURCE FOR IMPROVING HOSPITAL FOOD
lead to relationships between the hospital and farmers For advocates looking for ideas and tools for
that later develop into purchasing arrangements. improving food systems around hospitals and other
Hosting these types of events may be particularly healthcare institutions, Healthcare Without Harm
attractive to nonprofit and charity hospitals, which are is a vital resource. Healthcare Without Harm is an
required to provide ―community benefits‖ in exchange organization that deals with myriad issues in the
for retaining their tax status.72 The IRS defines healthcare industry, including food systems.
qualifying community benefits broadly, essentially Healthcare Without Harm advocates that
including any service to the community that promotes healthcare institutions adopt environmentally and
good health.73 Financially supporting a CSA or farmers socially responsible food procurement policies in
market located on hospital grounds could help a order to improve the nutrition of patients,
hospital satisfy this requirement and thus remain tax employees, and guests. Because of hospitals’ large
exempt. Food policy councils can work to educate purchasing power, Healthcare Without Harm sees
some of the large hospitals in the state about these and their procurement practices as important
                                                          keystones for improving public health within their
other ways to contribute positively to the food system    communities. The organization’s website offers
in ways that benefit the hospitals as well.               tools, resources, and detailed information on the
                                                                                  issue of food systems and food procurement in
CONCLUSION           With options ranging from schools healthcare institutions.
to state agencies, the possibilities for farm to institution Source: Healthy Food: Global Overview, HEALTHCARE WITHOUT
programs are considerable. Favoring local products in HARM, http://www.noharm.org/all_regions/issues/food/
institutions that feed large numbers of people has (last visited Oct. 22, 2012).
several benefits: constituents gain access to fresh,
nutritious food and, in the process, learn about where their food comes from and how to eat more
healthfully; farmers gain high-volume customers that ensure a fair price for their products; and,
communities gain a vibrant local food system that continues to invest in itself. Food policy councils
interested in cultivating healthier foods, healthier farms and, ultimately, healthier citizens can begin to meet
those needs by supporting farm to institution programs.

68
   Id. The Center for Food and Justice report also recommends that hospitals plant their own gardens for patients to enjoy and to provide some
food for the institution. While this initiative would have multiple benefits in its own right, it is outside the purview of this section because it
does not involve hospitals in the existing local food market.
69
   Kaiser Permanente Oakland Farmers Market, PACIFIC COAST FARMERS MARKET ASSOCIATION, http://pcfma.com/market_home.php?market_id=9
(last visited Oct. 22, 2012).
70
   Id.
71
   Farm to Hospital, CTR. FOR FOOD & JUSTICE, URBAN & ENVTL. POLICY INST., OCCIDENTAL COLL.,
http://www.foodsecurity.org/uploads/F2H_Brochure-Nov08.pdf (last visited Oct. 4, 2012).
72
   Nonprofit Hospitals and the Provision of Community Benefits, CONGRESSIONAL BUDGET OFFICE 7 (Dec. 2006),
http://www.cbo.gov/sites/default/files/cbofiles/ftpdocs/76xx/doc7695/12-06-nonprofit.pdf.
73
   Id.


                                                                                                                        Farm to Institution | 76
SECTION VII: SCHOOL FOOD & EDUCATION
Education for K-12 school children and young adults is a crucial component of creating a generation of eaters that is healthy, eco-
literate, and concerned with the economic and environmental sustainability of our food system. Food policy councils can provide
assistance to schools by advocating for policies that create nutrition, gardening, and wellness programs in school environments, as
well policies aimed at increasing the amount of healthy, fresh foods served in schools.

OVERVIEW This section details the variety of ways in which food policy councils can push for policies
that assist K-12 schools in creating healthier school food environments and healthier student bodies. States
play a major role in creating healthy schools and healthy students, and food policy councils can participate
by advocating for state-level change concerning school food and nutrition education. States can also make
positive changes to the future health of their citizens by improving statewide curricular requirements
around health and physical activity, pushing for the implementation of school wellness policies, and
encouraging unique educational opportunities in agriculture, food production, and nutrition.
1. School Nutrition As institutions where students spend large amounts of time, schools are in a
unique position to ensure that children and young adults receive nutritious meals. Food policy councils can
provide significant assistance to schools by advocating for state policy changes that bring more fresh and
nutritious food to students. This section discusses wellness policies, school nutrition policies (including
reimbursable school meals, competitive foods, and vending machines), and issues of participation in school
breakfast and school lunch programs.
2. Health & Nutrition Education Engaging students in the world of food, agriculture, and
nutrition through school gardens, cooking classes, and agricultural partnerships can provide students with
hands-on opportunities that have lasting effects on their health and understanding of food and agriculture.
Food policy councils can advocate for state agencies to encourage school gardens and push the state to
incorporate gardening and cooking courses into the curriculum. State food policy councils can also seek to
create partnerships between schools and agricultural groups, such as farmers, agriculture departments at
universities, or other agricultural programs.

SCHOOL NUTRITION Schools serve a range of functions beyond their formal educational settings:
they teach children about the norms of society, how to appropriately interact with others, and how to lead
healthy and productive lives. School food choices therefore carry a certain weight since they have the stamp
of approval from the educational and societal authorities in children’s lives. For that reason alone, states
have a responsibility to hold public schools to certain nutritional standards in the foods they provide to
students at school meals and throughout the school day. In addition, more nutritious food in cafeterias
means healthier students. State food policy councils can play a major role in advocating for their states to
establish high nutritional standards for their public schools’ food service programs, as well as ensuring that
all students who are eligible for free or reduced-price meals enroll in those programs so that all students can
receive access to much-needed healthy and nutritious foods throughout the day.

Wellness Policies According to federal law, any school receiving federal funding for school lunch or
school breakfast must implement a “school wellness policy.”1 This federal regulation was strengthened as
part of the Healthy, Hunger-Free Kids Act of 2010, and now includes minimum standards for what a school
wellness policy must include, such as specific plans for nutrition education, physical education, and school



1
    Healthy, Hunger-Free Kids Act of 2010, 42 U.S.C. § 1758b (2010).


                                                                                                    School Food & Education | 77
nutrition guidelines.2 According to the regulations, wellness policies must be reviewed by the community
and must include an implementation plan that meets new assessment standards.3 Compliance levels should
be increasing among school districts across the country due to the new regulations. It is important to note
that this federal rule applies directly to schools and school districts, bypassing the states altogether. State
governments thus have no direct obligation to act with regard
to these school wellness policies, but they can take steps to
                                                                                STATE WELLNESS POLICIES
help empower schools to better create and utilize these
policies. State food policy councils can play a big role in The Mississippi Healthy Students Act
influencing the state government to support these wellness requires school districts to establish local
policies by:                                                         school wellness committees made up of
                                                                     various stakeholders to create and
   Pushing states to mandate that school districts come up implement school wellness plans
       with their own wellness policies—essentially just encompassing both healthy eating and
       repeating the federal requirement in the form of a state physical activity. The committees are
       law that the state can then enforce and use to ensure supposed to report to their local school
       that schools end up with strong, effective wellness boards to keep the wellness plans in line
       policies. The National Association for Nutrition and with the district’s overall educational
       Activity has created a model school wellness policy that missions. The state Act thus mandates a
       states can encourage school districts to use as a basis for particular infrastructure for districts to
       their own wellness policies.4                                 utilize and sets out broad categories for the
                                                                     content they should address, without
   Advocating for states to provide guidance where the giving specific instructions on what the
       federal government has failed to do so. Without plans must look like.
       mandating specific content or structure, states can
                                                                     Sources: S.B. 2752, 127th Leg. Sess., Reg. Sess.,
       establish basic standards for school wellness plans that 2012 Miss. Laws Ch. 555; Danielle Hamilton et al.,
       help districts get off the ground, for example, by Mississippi Kids Count: Healthy Schools in Mississippi,
       requiring a school wellness committee in addition to HARVARD LAW SCH. MISS. DELTA PROJECT 5 (2010),
                                                                     available at
       just a wellness policy (see text box on the Mississippi http://www.ssrc.msstate.edu/mskidscount/downl
       Healthy Students Act).                                        oads/Harvard/2010_2011/Healthy%20Schools%2
                                                                     0FINAL.pdf.
   Encouraging states to adopt a single wellness plan on a
       statewide basis and require schools and districts to
       implement it.

Nutrition in School Food The nutritional quality of food served at schools through reimbursable
school meals, competitive foods, and vending machines has been a hot topic in recent years. The federal
government sets nutrition standards for school meals that are reimbursed using federal funds and the recent
Healthy, Hunger-Free Kids Act now requires the USDA to implement rules that impose nutritional
standards on so-called “competitive foods” (those foods or snacks that are available in schools but not as part
of the free or reduced-price reimbursable meals programs). State food policy councils have the ability to
advocate for higher standards for their state’s school meals and competitive foods, and can encourage the
state to set standards for food sold in vending machines.


2
  Id. Child Nutrition Reauthorization 2010: Local School Wellness Policies, U.S. DEP’T OF AGRIC., FOOD & NUTRITION SERV. 2 (July 8, 2011),
http://www.fns.usda.gov/cnd/Governance/Policy-Memos/2011/SP42-2011_os.pdf.
3
  Child Nutrition Reauthorization 2010: Local School Wellness Policies, U.S. DEP’T OF AGRIC., FOOD & NUTRITION SERV. 2 (July 8, 2011),
http://www.fns.usda.gov/cnd/Governance/Policy-Memos/2011/SP42-2011_os.pdf.
4
  See Model Local School Wellness Policies, NAT’L ASS’N FOR NUTRITION & ACTIVITY,
http://www.schoolwellnesspolicies.org/WellnessPolicies.html (last visited Oct. 9, 2012).


                                                                                                                School Food & Education | 78
Reimbursable School Meals The term “reimbursable school meals” refers to those meals provided free
or at reduced price to low-income families for which schools receive federal reimbursement via the
National School Lunch and School Breakfast Programs.5 The federal government lays out comprehensive
standards with which schools must comply in order to receive these reimbursements.6 These standards
require specific quantities of servings for meat or meat alternatives, vegetables or fruits, grains or breads,
and milk.7 The quantity varies depending on the meal and the age of the children. There are also restrictions
on the amount of sodium, sugar, and trans fat that can be
included in these meals as well as calorie minimums and
                                                                       ARKANSAS REIMBURSABLE SCHOOL
maximums that must be met.8 USDA even provides specific                        MEAL STANDARDS
recipes to help schools ensure they are meeting the regulations.9
                                                                                             Arkansas created a Child Health
New school meal standards that apply to the reimbursable meals                               Advisory Committee that was directed
                                                                                             to create nutrition and physical activity
were published in January 2012 and implementation of the new
                                                                                             standards for elementary through high
rules began in July 2012.10 The new regulations “require most                                school students.
schools to increase the availability of fruits, vegetables, whole
grains, and fat-free and low-fat fluid milk in school meals; These standards apply to all foods and
reduce the levels of sodium, saturated fat and trans fat in meals; beverages made available to students at
and meet the nutrition needs of school children within their all public schools within the state. In
                                                                     elementary schools, for example, the
calorie requirements.”11 Despite these new regulations, state standards limit the sale of French fries to
food policy councils can still advocate for higher standards for not more than once a week, prohibit
school meals in their states by:                                     extra servings of dessert, and ban foods
   Pushing for legislation that increases the nutritional quality or beverages from being sold or given
       of food by offering healthier options. Mississippi’s away outside of meal times.
       Healthy Students Act mandated that the state Board of Source: State School Healthy Policy Database, NAT’L
       Education adopt regulations to improve nutrition and ASS’N OF STATES BDS. OF EDUC.,
                                                                     http://nasbe.org/healthy_schools/hs/bytopics.
       increase participation in the school lunch and breakfast php?topicid=3110&catExpand=acdnbtm_catC
       programs.12 The rules address major health issues in (last visited Oct. 29, 2012).
       schools, including requiring at least one fresh vegetable
       offered to students daily, offering milk of no more than
       160 calories per 8-ounce serving, and serving at least three different fruits and five different
       vegetables, which are preferably dark green and/or orange, each week.13 Mississippi also encourages
       the elimination of fryers from all school kitchens and requires schools to develop a long-range plan

5
 School Lunch and Breakfast Programs, NUTRITION.GOV, http://www.nutrition.gov/food-assistance-programs/school-lunch-and-breakfast-
programs (last visited Oct. 5, 2012); http://www.fns.usda.gov/cnd/Breakfast/Default.htm (last visited Oct. 5, 2012). See generally Eligibility
for School Meals, U.S. DEP’T OF AGRIC., FOOD & NUTRITION SERV., http://www.fns.usda.gov/cnd/guidance/EliMan.pdf (last visited Oct. 5,
2012).
6
  7 C.F.R. pt. 210 (2012). See also Reimbursable Meal Requirements, U.S. DEP’T OF AGRIC.,
http://teamnutrition.usda.gov/Resources/rec_quality.pdf (last visited Oct. 5, 2012).
7
  7 C.F.R. § 210.10 (2012).
8
  Id.
9
  Reimbursable Meal Requirements, U.S. DEP’T OF AGRIC., http://teamnutrition.usda.gov/Resources/rec_quality.pdf (last visited Oct. 5, 2012).
10
   Nutrition Standards in the National School Lunch and School Breakfast Programs, 77 Fed. Reg. 4087, 4088 (Jan. 26, 2012) (to be codified at
21 C.F.R. pts. 210 & 220).
11
   Id.
12
   MISS. CODE ANN. § 37-13-137 (2012); see also Danielle Hamilton et al., Mississippi Kids Count: Healthy Schools in Mississippi, HARVARD LAW SCH.
MISS. DELTA PROJECT 6 (2010), available at
http://www.ssrc.msstate.edu/mskidscount/downloads/Harvard/2010_2011/Healthy%20Schools%20FINAL.pdf.
13
   7-1 MISS. CODE R. § 51:4011 (LexisNexis 2012). Mississippi Healthy Students Act Senate Bill 2369 Nutrition Standards, HEALTHY SCHOOLS MISS. 1
http://www.healthyschoolsms.org/documents/MississippiHealthyStudentsActSenateBill2369NutritionStandards_000.pdf (last visited Oct. 9,
2012).


                                                                                                               School Food & Education | 79
       for reducing or eliminating fried foods.14 State food policy councils can advocate for policies similar
       to the Mississippi Healthy Students Act, requiring schools to adopt healthier policies for the foods
       that they serve and increasing participation in the free and reduced price school lunch and breakfast
       programs.
      Advocating for legislation that prohibits certain foods in schools (e.g., desserts, fries, ice cream). In
       Arkansas, elementary school cafeterias participating in the federal school meal programs are not
       permitted to serve desserts, French fries or ice cream.15 In middle, junior, and high schools in
       Arkansas, the school is permitted to sell only additional food items that are already part of the
       reimbursable meal, such as extra milk, fresh fruits, and other beverages that meet the federal school
       nutrition standards.16

                                                                      Advocates focused on state policies cannot change the
        THE IMPORTANCE OF PHYSICAL ACTIVITY                           federal school meal regulations but, so long as the
     Food policy councils working on issues of school                 federal guidelines are met, states can implement their
     nutrition and health education should not forget                 own, more stringent nutritional standards for school
     that physical activity is also an important                      meals. However, it is important to keep in mind that
     component of student health. The U.S.                            the new reimbursable school meal regulations are quite
     Department of Health and Human Services                          strong. As these new go into effect over the next few
     recommends that children participate in at least                 years, state food policy councils may not have to spend
     one hour of moderate physical activity per day
                                                                      as much time focusing on the nutritional quality of the
     and engage in vigorous physical activity at least
     three days a week. Schools can help students                     reimbursable meals. Food policy councils can instead
     reach this goal through providing physical                       turn their attention to competitive foods and vending
     education classes and extra-curricular activity                  machines, where there is less federal regulation
     offerings.                                                       regarding nutritional standards, and consequently,
                                                                      more area for improvement at the state level.
     Informal physical activity opportunities also make
     a huge difference. Providing a few minutes of
     recess each day has been shown to have excellent                 Competitive Foods “Competitive foods” are defined
     health benefits. Not only is the physical activity               as any foods sold at school that are not part of the
     itself valuable, but research indicates that when                National School Lunch or School Breakfast programs.17
     recess is scheduled before lunch, students tend to               Currently, the only limitation placed on such foods
     choose more well-balanced, nutritious lunches to                 under federal law is that the sale of “foods of minimal
     replenish their bodies.                                          nutritional value” is not allowed in schools.18 Because of
     Sources: 2008 Physical Activity Guidelines for Americans, U.S.   this limited federal regulation, states may have an easier
     DEP’T OF HEALTH & HUMAN SERVS. vii (2008),                       time setting standards for what is available to students
     http://www.health.gov/paguidelines/pdf/paguide.pdf.
     Benefits of Recess Before Lunch: Fact Sheet, HAMILTON CNTY.
                                                                      in this context. The Healthy Hunger-Free Kids Act of
     COORDINATED SCH. HEALTH COMM. 1 (2009),                          2010 mandated that the USDA create nutrition
     http://www.peacefulplaygrounds.com/pdf/benefits-recess-          guidelines for all food sold on school campuses,
     before-lunch-facts.pdf.



14
   Id.
15
   005-15-15 ARK. CODE R. § 8.01.3 (LexisNexis 2012); Rules Governing Nutrition and Physical Activity Standards and Body Mass Index for Age
Assessment Protocols in Arkansas Public Schools, ARK. DEP’T OF EDUC. (Aug. 2007), available for download at
http://www.arkansased.org/health/pdf/ade_ 215_nutrition_and_physical_activity_standards.pdf.
16
   005-15-15 ARK. CODE R. § 8.01.5 (LexisNexis 2012).
17
   See, e.g., MASS. GEN. LAWS ch. 111, § 223 (2012).
18
   Competitive Food Frequently Asked Questions, CAL. DEP’T OF EDUC., http://www.cde.ca.gov/ls/nu/he/compfoodsfaq.asp (last visited
Oct. 5, 2012). A list of those foods is provided on USDA Food and Nutrition Service’s website. See School Meals: Food of Minimal Nutritional
Value, U.S. DEP’T OF AGRIC., FOOD & NUTRITION SERVICE, http://www.fns.usda.gov/cnd/menu/fmnv.htm (last visited Oct. 5, 2012).


                                                                                                              School Food & Education | 80
including competitive foods.19 At the time of publication, USDA had yet to release its draft rules, but this
new mandate means that competitive foods will soon be subject to federal regulations similar to those that
apply to the reimbursable school meals.20 However, it is unclear how strict the federal regulations on
competitive foods will be, so it is likely that states will still have ample room to go above and beyond the
federal rules in regulating the nutritional makeup of competitive foods sold in their schools.

Massachusetts provides an example of what the substance of these regulations might look like. Its statute
lays out a few specific rules and empowers the state Department of Public Health to add to those rules as it
sees fit.21 The four regulations contained within the statute itself are:
   Free water must be available to students all day;
   Where refrigeration is available, fruits and non-fried vegetables must be offered as options;
   Nutritional information for all non-prepackaged food must be made available to students; and
   No “fryolators” (deep fryers) may be used to prepare any competitive food items offered.22

By allowing the Department of Public Health to add more regulations on top of those basic regulations, the
legislature gave the state the flexibility to deal with unhealthy items that may become problematic in the
future while addressing the four major issues from the start. Massachusetts’ approach is a solid model for
advocates in other states to follow when seeking statewide regulation of competitive foods in schools.

Similar to the Massachusetts example, state food policy councils can use a few different methods to
influence states to take control of the types of competitive foods offered to students:
   Push the state legislature to require the state department of education or other relevant state agencies
      to promulgate regulations limiting calorie amounts in competitive foods.
   Encourage states to ban certain foods from being offered as competitive foods.

Vending Machines Vending machine offerings provide another type of competitive food in schools.
While vending machines are almost always privately owned and operated, states can still regulate what
vending machines are allowed to sell in public schools. Because many vending machine options can be quite
unhealthy, this might be a good place for states to begin regulating competitive foods. The Healthy,
Hunger-Free Kids Act of 2010’s mandate to set nutritional guidelines for competitive foods applies to
vending machines as well.23 Therefore, as with competitive foods, federal regulations will set a baseline for
nutritional content of these foods. However, as with other competitive foods, the federal guidelines will
likely not be too strict, so states will still have the ability to regulate the nutritional quality of foods sold in
vending machines above and beyond the regulations set by the federal government. State governments have
the power to prohibit vending machines in schools altogether, so promulgating regulations on what they are
allowed to carry is well within state power.




19
   42 U.S.C. § 1779 (2012). See also Summary of the Healthy, Hunger-Free Kids Act of 2010, U.S. DEP’T OF AGRIC., FOOD & NUTRITION SERV. 3,
http://www.fns.usda.gov/cnd/Governance/Legislation/PL111-296_Summary.pdf (last visited Oct. 5, 2012).
20
   42 U.S.C. § 1779 (2012).
21
   MASS. GEN LAWS ch. 111, § 223 (2012).
22
   Id.
23
   42 U.S.C. § 1779 (2012).


                                                                                                            School Food & Education | 81
States have taken various approaches to limit vending machine content. Some state regulations allow all
types of food but limit fat or calorie content; others restrict vending machines to legitimately healthy food
items. A few examples of state action on the issue include:
    The Mississippi regulations promulgated by the State Department of Education pursuant to the
      Healthy Students Act cover food sold in vending machines (in addition to school meals). These
      regulations restrict beverages by allowing only bottled water, low-fat or non-fat milk, or 100% fruit
      juices to be sold to elementary and middle school students during the day, with those options plus
      zero-calorie or low-calorie soft drinks and light sports drinks or juices for high school students.24 For
      food items, the Department of Education maintains a list of products approved for sale at schools
      (including vending machines); no single item may have over 200 calories.25
    Oregon’s regulations are more stringent: rather than allow vending machine items up to 200
      calories for all students, Oregon limits the calorie count to 150 calories per item in elementary school
      vending machines, 180 in middle schools, and 200 in high schools.26
    Louisiana bans the sale at school, including the 30 minutes before and after the school day, of any
       food with “minimal nutritional value.”27 It also prohibits snacks exceeding 150 calories per serving,
       those with more than 35% of their calories from fat, or those with more than 30 grams of sugar per
       serving, except for plain nuts and seeds.28
    New Mexico only allows vending machines in middle and high schools to serve certain beverages,
       nuts, seeds, cheese, yogurt, or fruit, and limits other foods (subject to calorie, fat and sugar
       restrictions).29 Vending machines in elementary schools are not allowed to sell food at all (only
       beverages).30 The beverages served in vending machines are also subject to restrictions.31
    West Virginia not only limits the content of vending machines but also does not allow corporate
       logos to be displayed on vending machines’ exteriors.32 The regulations also encourage school
       districts to place vending machines in low-traffic areas and to disallow any misleading marketing that
       may indicate that the food inside the machine has any health benefits.33

As these various legislative choices illustrate, states have used a variety of different nutritional concepts and
metrics to impact the quality of foods available in vending machines in schools. Food policy councils in
states that do not currently regulate nutrition in school vending machines thus have an ample choice of state
examples to use in pushing their states to regulate in this important area.

Participation in School Meal Programs Even though the federal government provides free and
reduced meals to eligible students, not all eligible students take advantage of these programs because of
various barriers to enrollment. Over the past few years, much of the discussion around school meals
focused on increasing enrollment and participation in the National School Lunch Program (NSLP).

24
   7-1 MISS. CODE R. § 51:4003 (LexisNexis 2012). Beverage Regulations for Mississippi Schools, STATE BD. OF EDUC. (Oct. 20, 2006),
http://www.cn.mde.k12.ms.us/documents/vendingregformsschools06.pdf.
25
   7-1 MISS. CODE R. § 51:4004 (LexisNexis 2012). Snack Regulations for Mississippi Schools, STATE BD. OF EDUC. (Oct. 20, 2006),
http://www.cn.mde.k12.ms.us/Regs&Policies/Vending/VendingRegSnk.pdf.
26
   OR. REV. STAT. §336.423 (2012).
27
   LA. REV. STAT. ANN. § 17:197.1 (2012).
28
   Id.
29
   N.M. ADMIN. CODE § 6.12.5 (2012).
30
   Id.
31
   Id.
32
   Bd. of Educ. Legis. Rule 126 series 86 (W. Va. 2008), available at http://wvde.state.wv.us/policies/p4321.1.pdf.
33
   Id. Note that West Virginia also prohibits using food or beverages of any kind as a reward for students during the school day.


                                                                                                              School Food & Education | 82
Increasing the participation rate of students in the NSLP is still an important goal, but just as important is
increasing the number of schools that offer free and reduced price breakfasts and ensuring that eligible
children participate in these programs as well. Many low-income children do not receive breakfast at home,
and without a healthy meal to start the day it is difficult for children to concentrate and learn. Federal law
provides for the federal government to reimburse school breakfast, similar to the NSLP.34 The National
School Breakfast Program (NSBP) has been underutilized: as of 2009, at least 16,000 schools that
participated in the NSLP did not participate in the NSBP.35 Of every 100 students who receive free or
reduced-price lunch nationwide, only 48.2 receive free or reduced-price breakfast.36

Direct Certification Children whose families receive SNAP benefits or emergency food assistance are
automatically eligible for free meals at school.37 In the 2010-2011 school year, 85% of schools in the U.S.
used direct certification to enroll these “categorically eligible” students in school meal programs. 38 The
Healthy, Hunger-Free Kids Act of 2010 requires states to improve their direct certification process in order
to increase enrollment of these categorically eligible children in school meal programs. 39 In
Massachusetts, the Department of Elementary and Secondary Education is piloting a program that allows
school food service directors to access the names of the children in their schools that are enrolled in SNAP
and the emergency food assistance programs from a database managed by Department of Transitional
Assistance.40 Previously, the data allowing schools to identify which students are categorically eligible was
only available twice a year.41 Under this pilot program, school food service directors will be able to access
this data in real time.42 State food policy councils should advocate that their states implement programs like
the one in Massachusetts to ensure that categorically eligible children are being enrolled in the meal
programs at their schools.

Universal Free Meals One of the obstacles to participation in school breakfast has to do with the stigma
associated with free and reduced-price meals. At lunchtime, all students are either in or near the cafeteria
whether or not they receive the reimbursable school meal; in the mornings, however, students arrive at
different times and do various activities before the school day starts. If students eligible for the NSBP go to
the cafeteria for breakfast, other students are more likely to know that those students are receiving a free
meal, which may raise issues of stigma and embarrassment for those children. There are two main ways that
schools can change their policies to help reduce the stigma associated with free and reduced-price meals and
increase participation in both the NSLP and NSBP.

Provision 2 of the National School Lunch Act allows schools and institutions to provide universal free meals
(breakfast and/or lunch) to all students in their schools.43 The schools pay the difference between the
34
   42 U.S.C. § 1773 (2012).
35
   School Breakfast Program Resolution, U.S. DEP’T OF AGRIC., FOOD & NUTRITION SERV. (Mar. 9, 2009),
http://www.fns.usda.gov/cnd/Breakfast/resolution.htm.
36
   School Breakfast Program 2010-2011 Participation, FOOD RESEARCH & ACTION CTR., http://frac.org/federal-foodnutrition-programs/school-
breakfast-program/ (last visited Nov. 2, 2012).
37
   Direct Certification, MASS. DEP’T OF ELEMENTARY & SECONDARY EDUC., CHILD NUTRITION OUTREACH PROGRAM,
http://meals4kids.org/direct-certification (last visited Nov. 2, 2012).
38
   U.S. DEP’T OF AGRIC., FOOD & NUTRITION SERV., DIRECT CERTIFICATION IN THE NATIONAL SCHOOL LUNCH PROGRAM: STATE IMPLEMENTATION
PROGRESS SCHOOL YEAR 2010-2011 6 (2011), available at http://www.fns.usda.gov/Ora/menu/Published/CNP/FILES/DirectCert2011.pdf.
39
   42 U.S.C. § 1758(b)(4) (2012). See also Direct Certification, MASS. DEP’T OF ELEMENTARY & SECONDARY EDUC., CHILD NUTRITION OUTREACH
PROGRAM, http://meals4kids.org/direct-certification (last visited Nov. 2, 2012).
40
   Direct Certification, MASS. DEP’T OF ELEMENTARY & SECONDARY EDUC., CHILD NUTRITION OUTREACH PROGRAM,
http://meals4kids.org/direct-certification (last visited Nov. 2, 2012).
41
   Id.
42
   Id.
43
   42 U.S.C. § 1759a(a) (2012).


                                                                                                        School Food & Education | 83
federal reimbursement rate and the cost of serving free meals to all the students. 44 Although the cost to
schools will increase due to the school picking up the tab for the meals not covered by the federal
government, schools can benefit from reduced paperwork, simplification of school meal logistics, and an
increase in student participation in the meal programs.45 Schools with a high percentage of low-income
students (75% or more) are the most likely to benefit from Provision 2, as the marginal cost of increased
meals that would be borne by the school would be offset by eliminating the high administrative costs of
verifying and accounting for so many eligible students.46

However, Provision 2 is not reserved for schools with a high number of low-income students. In
Washington, DC, public schools started offering universal free breakfast in 2005 and recent legislation
required that all DC elementary schools in which 40% or more of students qualify for free or reduced-price
meals serve universal free breakfast in the classroom.47 As a result of this policy, participation in school
breakfast increased 32% in the following school year among low-income children, giving DC the highest
school breakfast participation rate in the nation.48 State food policy councils should advocate for schools to
create universal free breakfast and lunch programs and advocate for state government to provide funding to
assist such programs.

HEALTH & NUTRITION EDUCATION Ideally, schools should be places where students gain an
appreciation for proper nutrition and healthy eating. In addition to improving the actual food served in
schools, state food policy councils can focus on food and nutrition curricula.49 An educational program
focused on the food system and its impact on consumers, the environment, and nutrition, and how students
can improve their health—and their life expectancies—has the potential to make a serious impact in
students’ lives.50

State-level advocates are well-positioned to help states take advantage of this potential, as public school
curriculum decisions are generally made at the state level, although there may be some variation depending
on the state. It is important for food policy councils to find out where decisions about curriculum are made,
whether at the state level from the department of education or the board of education, or at the local level
by the school districts and local boards of education. Even if the curriculum decisions are made by school
districts or individual schools, the state government can choose to take control of education policy at any
time. The legislature can assert control either by passing laws specifying certain curricular decisions or by
mandating that the relevant state agency enact certain curricular policies. Therefore, advocates are best
served by taking a dual approach to the issue, utilizing both legislative advocacy (e.g. addressed to
legislators) and agency-level advocacy (e.g. addressed to the department of education).




44
   Provision 2 of the National School Lunch Act, FOOD RESEARCH & ACTION CTR., http://frac.org/newsite/wp-
content/uploads/2009/05/provision2.pdf.
45
   Id.
46
   School Breakfast Program Reimbursement and Funding, FOOD RESEARCH & ACTION CTR., http://frac.org/federal-foodnutrition-programs/school-
breakfast-program/ (last visited Nov. 2, 2012).
47
   D.C. Healthy Schools Act: Breakfast/Lunch Access, D.C. HUNGER SOLUTIONS, http://dchealthyschools.org/whats-in-the-act-2#bla (last visited
Nov. 2, 2012).
48
   Press Release, “Breakfast in the Council” Celebrates D.C. for its #1 Ranking for School Breakfast Participation Under Secretary Kevin
Concannon, FRAC President Jim Weill Join D.C. Hunger Solutions to Commemorate Achievement (Feb. 21, 2012), available at
http://www.dchunger.org/press/dc_first_school_breakfast_2012_dc.htm.
49
   See Why Schools Need a Mandatory Nutrition Curriculum, NYC GREEN SCHOOLS (2010), http://www.nycgreenschools.org/?p=620.
50
   Id.


                                                                                                           School Food & Education | 84
One approach food policy councils can take to advocate that their legislatures strengthen nutrition
education offerings more generally is to require the state department of education to develop and
implement a nutrition education program. In 2003, California’s legislature mandated that the state
Department of Education create a curriculum focused on students’ eating habits.51 The statute requires that
the curriculum cover three key areas of learning: nutritional knowledge, nutrition-related skills, and tools
for students to assess their own personal eating habits.52 The legislation sets general goals and describes
these basic categories, then allows the Department of Education to decide how exactly to structure the
curriculum, what topics to cover at what age, and what other implementation issues need to be addressed.
Food policy councils can also push for targeted education curricula around school gardens, cooking skills,
and agricultural partnerships, as described below.

School Gardens One exciting trend in health and nutrition education is the growth in school gardens.
The concept is simple: planting a garden to grow fruits and vegetables on school grounds opens the door to
learning opportunities in a variety of areas. Currently, around 300 farm- or garden-based education
programs operate in schools around the U.S.53 In many cases these hands-on school programs tie in with
classroom lessons in science, math, reading, and many other subjects.54

Here are some ways state food policy councils can effect change with regard to school gardens:
  Advocate that the state mandate that schools adopt a school garden program. Oregon’s school
      garden legislation required the state Department of Education to create and administer a program
      encompassing both school gardens and farm to school programs.55 Oregon has taken the view that all
      school districts should reap the benefits of school gardens, and that the state should oversee the
      development of these programs. The Department must assist school districts in setting up school
      garden programs as part of larger school wellness plans.56 The advantage of this approach from an
      advocate’s perspective is that it guarantees that school gardens will become a reality in public schools.
      However, the comprehensive and mandatory nature of this approach may make it difficult to
      replicate in other states.
  Advocate that the state create a school garden program within the department of education to
      provide resources and curricular support for school gardens throughout the state. The California
      legislature established a statewide Instructional School Gardens Program under the auspices of the
      state Department of Education.57 The Department serves as a resource for schools by administering
      instructional school gardens and providing curricular guidance. This support is designed to entice
      schools and districts to adopt school garden programs, and to assist them in identifying state and non-
      state resources and technical assistance to run their gardens.58 This model strikes a balance: it does
      more than simply authorize school gardens with no guidance or support, but does not mandate or pay
      directly for garden programs. A similar approach that advocates could use is encouraging the state
      Department of Education to develop a school garden curriculum for schools to use that includes
      lesson plans connected to the state education standards.

51
   CAL. EDUC. CODE § 51210.4 (West 2012).
52
   Id.
53
   Bernice Yeung, Cultivating Minds: Food-Related Curricula Take Root Nationwide, EDUTOPIA (Nov. 5, 2008), http://www.edutopia.org/food-
school-garden-farm-curriculum.
54
   Id.
55
   OR. REV. STAT. § 336.426 (2012).
56
   Id.
57
   CAL. EDUC. CODE § 51796 (2012).
58
   Id.


                                                                                                           School Food & Education | 85
      Encourage the state to pass a resolution clarifying that schools are allowed to plant and maintain
       gardens as part of their educational missions and expressing support for such programs.
       Washington’s school garden statute shows support for school gardens by clearly stating that schools
       are allowed to operate gardens for educational and/or school food purposes. 59 This expresses the
       legislature’s support for school gardens and opens the door for school districts to choose to create or
       invest in school gardens on their own. This type of statute is a good option for advocates meeting
       resistance from state lawmakers who do not want to spend money on school garden program or who
       do not want to micromanage the state’s school districts.

Cooking Classes Teaching children about where their food comes from and what foods are healthy or
unhealthy is an important task, but it has limited practical value if students lack the skills to turn nutritious
ingredients into healthy meals. Teaching students to cook is a natural step toward creating smart, healthy
eaters. Cooking classes can be successful on their own, but are particularly effective when integrated into a
broader curriculum. They have the ability to provide practical skills that draw on lessons learned in farm to
school programs, school gardens, agricultural partnerships, and nutrition classes. In short, cooking lessons
help students gain the concrete skills to make healthy food choices.

Like nutrition education more broadly, state legislatures
and/or departments of education can enable, encourage,                                         COOKING WITH KIDS
administer, or mandate that cooking be part of public
                                                                                 This independent program in New Mexico
schools’ curriculum. Cooking can be a standalone class or                        aims to improve nutrition through public
a unit within a broader nutrition education curriculum.                          school classes that engage students in hands-on
                                                                                 learning with fresh, affordable food from a
There do not appear to be any state-administered or state-                       range of cultures. It does not require much
mandated school cooking classes currently. However,                              school time, as it involves anywhere from one
there are several independent, local programs that can                           to five class periods with students in pre-
serve as models for any state interested in implementing                         kindergarten through sixth grade. Some of the
cooking programs in schools around the state. One                                sessions teach students how to prepare
example is the “Cooking with Kids” program in Santa Fe,                          healthy, affordable recipes, and others offer
New Mexico elementary schools (see text box).60                                  “fruit and vegetable tastings” to introduce
                                                                                 students to healthy and tasty produce.
Programs like Cooking with Kids are usually more local
than statewide, but the state can support their                                  Source: 2010-2011 Program Report, COOKING WITH KIDS,
                                                                                 http://cookingwithkids.net/2011/09/2010-2011-
development on a state level if desired.                                         program-report/ (last visited Oct. 5, 2012).

In sum, with regard to cooking classes, state food policy
councils can:
   Advocate for state legislatures and/or departments of education to enable, encourage, administer, or
      mandate that cooking be part of public schools’ curriculum.
   Advocate for the state legislature and/or department of education to pass a resolution in support of
      cooking programs.
   Advocate for the legislature to demonstrate support for nutrition and cooking education by allocating
      funds to schools designated for this purpose.


59
 WASH. REV. CODE § 28A.320.185 (2012).
60
 About Cooking with Kids, COOKING WITH KIDS, http://cookingwithkids.net/about/ (last visited Oct. 5, 2012).


                                                                                                          School Food & Education | 86
      Advocate for the state department of education to incorporate a program similar to Cooking with
       Kids into the overall health education curriculum.

Agricultural Partnerships Agricultural partnerships are relationships between farmers and schools
in which children can learn more about agriculture, the food system, and issues facing farmers.

The most common form of an agricultural partnership for schools stems from farm to school programs, in
which the schools are purchasing food products from local farmers and encourage those farmers to get
involved in education or mentoring with students at the school. This type of procurement relationship is
discussed in more detail in Section VI: Farm to Institution. Farm to school programs can be the basis for
educational programs in which students learn more about where their food comes from.61

As an example of what can be done at the state level, state food policy councils can also look to the
agricultural partnership program in Vermont. There, the legislature established a “Youth in Agriculture
Consortium” designed to coordinate various agricultural learning opportunities and improve access to such
programs.62 The Consortium is charged with coordinating several existing programs run by the state that
could be replicated in other states, including “Ag in the Classroom,” a project of the state Agency of
Agriculture, Food, and Markets that brings hands-on agricultural lessons to elementary and middle schools,
and a “Forest, Fields and Futures” program sponsored by the University of Vermont Extension Service.63
Students in kindergarten through eighth grade get lessons in things like dairy farming and maple sugaring
based on a set curriculum that conforms to the state’s overall educational standards. 64 Vermont can serve as
a model for statewide action on agricultural partnerships in schools: the legislature has taken action to
encourage agricultural education, a state agency administers a specific curriculum, and the state university
offers its resources to primary and secondary school students to help them engage in these issues.

State colleges and universities can provide great opportunities for agricultural partnerships. Most states have
at least one public university with a dedicated agriculture program. These universities can sponsor statewide
education programs designed to introduce students to careers in agriculture and give them hands-on
experience in the field. Advocates seeking to encourage their state’s universities to engage in these
programs can focus their efforts on the state agency in charge of public universities (the state board of
higher education or similar agency) or can directly advocate to university administrators. University
departments of agriculture should be viewed as public educational resources that can be shared with the
state’s children.65

In order to encourage and create more agricultural partnerships in schools, state food policy councils can:
   Advocate that the state enable, encourage, or mandate agricultural partnerships as part of school
      curricula (e.g., incorporating farm visits, bringing farmers to the classroom, or planning field trips to
      farmers markets).
   Push for the state to provide incentives such as grants for schools to build and incorporate agricultural
      partnerships.
61
   Farm to school programs are discussed in more detail in Section VI: Farm to Institution.
62
   VT. STAT. ANN. tit. 21, § 1153 (2012).
63
   Id.
64
   Vermont Ag in the Classroom—Curriculum, VT. AGENCY OF AGRIC., http://www.vermontagriculture.com/buylocal/learn/curriculum.html
(last visited Oct.5, 2012).
65
   One resource for advocates seeking specific curricular ideas is the Farm-Based Education Association, a network of farm-based education
practitioners who partner with schools to provide educational experiences on farms. See http://www.farmbasededucation.org/.


                                                                                                             School Food & Education | 87
   Encourage the state to facilitate partnerships between agricultural universities and primary and
    secondary schools (e.g., creating an information database that schools can use to connect with one
    another).
   Encourage the state to provide support for programs like 4-H and Future Farmers of America
    operating in schools.

CONCLUSION            Schools play a critical role in the development of our nation’s children, not only
nourishing their minds but also in nourishing their bodies. Beyond the traditional reading, writing, and
arithmetic, states have the opportunity to influence students’ learning about food systems, nutrition, and
what they put into their bodies. But teaching students about food systems, nutrition, and healthy living will
not be as effective if students are hungry or malnourished. States have the ability to ensure that students are
getting fed by expanding school breakfast and lunch programs to include all eligible students or by
implementing a universal free breakfast and lunch program for all students.




                                                                                    School Food & Education | 88
SECTION VIII: FOOD SAFETY & PROCESSING
This section offers a sketch of state and federal food safety regulations that apply to agricultural products (fruits and vegetables,
meat, poultry, eggs, and egg products) and processed foods. The federal government plays a significant role in food safety
regulations. However, there are a number of policy changes that state food policy councils can support in order to strengthen their
local food systems. The sections that follow will introduce the food safety-related legal challenges facing agricultural producers,
local in-home food processors (“cottage food” producers), and meat, poultry, and egg producers.
OVERVIEW Food safety is a key concern for many food producers, retail establishments, restaurants,
entrepreneurs, and consumers. Existing producers and potential producers often cite high compliance
costs, technical barriers, and difficulty understanding regulatory obligations as some of the primary barriers
to their businesses. Although federal regulation is a large component of the food safety picture, particularly
for food products that travel across state lines, state governments have a great deal of authority to design
flexible legal regimes with more appropriate regulations for small-scale operators that sell at local markets
or within state borders.
1. Overview of Food Safety Regulations: Federal & State This section provides a brief
overview of the federal and state food safety regimes, with a particular focus on the role that each level of
government plays in securing the national food supply and protecting public health. The descriptions are
intended to provide a brief orientation to the legal landscape facing local food producers.
2. Quality Certification Programs for Agricultural Producers Fruit and vegetable
producers are currently not heavily regulated with regard to food safety. However, some purchasers
require vendors to be certified as using ―good agricultural practices.‖ This section details ways in which state
food policy councils can reduce certification-related barriers to local and small-scale production.
3. Food Safety Regulations for Processed Foods Processed foods are subject to a number of
stringent state and federal regulations. This section provides a brief background of both the federal and state
roles in regulating processed food, as well as discusses ―cottage food‖ laws, through which states allow for
certain low-risk foods to be produced in a home kitchen.
4. Meat, Poultry, & Egg Processing for Small-Scale Producers This section provides a
brief overview of federal and state regulatory authority and exemptions for meat, poultry, and egg
production. State food policy councils should understand how the systems work and help make small-scale
producers aware of the relevant exemptions in order to encourage more local and small-scale producers.

OVERVIEW OF FOOD SAFETY REGULATIONS: FEDERAL & STATE Federal and state
governments share regulatory authority with respect to many aspects of food safety. Some food safety issues
are primarily regulated by the federal government (such as meat and poultry inspection), while others are
primarily within the state’s jurisdiction (such as farmers market and restaurant regulations).

Overview of Federal Food Safety Laws In general, federal regulations apply to all foods that
are sold in interstate commerce (meaning across state borders) or foreign commerce, and states have the
power to regulate most foods that are only sold intrastate (see Section I: General Legal Setting for more
information on the general breakdown in authority between federal and state governments).1 With a
number of specific exceptions, the U.S. Food & Drug Administration (FDA) has jurisdiction over processed


1
 Under the commerce clause, Congress has the authority to pass laws concerning and regulate interstate commerce. U.S. CONST. art. I, § 8, cl.
3.


                                                                                                            Food Safety & Processing | 89
foods, seafood, and food additives, while the U.S. Department of Agriculture (USDA) regulates fresh
produce, livestock, poultry, and eggs.

In January 2011, President Obama signed into law the Food Safety Modernization Act (―FSMA‖),2 which
was the first major overhaul to the federal food safety regime since 1938.3 There are two major parts of
FSMA that are particularly important to small and local food producers. First, FSMA increases federal
regulatory power over agricultural producers of fruits and vegetables, which were not heavily regulated in
the past.4 The Act does, however, exempt many small-scale
producers from most of its regulatory requirements.5
Agricultural producers whose operations gross less than          KEY PROVISIONS OF THE FEDERAL FOOD
$500,000 annually and who sell a majority of their products      SAFETY MODERNIZATION ACT (FSMA)
in direct sales to consumers, restaurants, or retail stores,       Gives FDA the authority to
either within the state or within 275 miles of the farm or            unilaterally order a mandatory
production facility, are exempt from the produce safety               product recall.
standards. 6
                                                                   Requires FDA to develop safety
                                                                                        standards for the production of fruits
Second, under FSMA facilities that ―manufactur[e],                                      and vegetables.
process[], pack[], or hold[] food‖ are now required to                                 Gives FDA the authority to designate
                                                                                        certain foods as ―high-risk,‖ subjecting
maintain an extensive hazard analysis and critical control
                                                                                        their producers to more stringent
point (HACCP) plan.7 Small-scale processors and facilities                              recordkeeping requirements.
are exempt from the specific hazard control requirements
                                                                                       Requires packing/processing facilities
laid out in the statute, and instead must submit modified                               to conduct risk assessments and
hazard control plans to the FDA.8 Similar to the produce                                develop hazard control plans that are
safety standards rule, facilities whose operations gross less                           meant to prevent food contamination.
than $500,000 annually and who sell a majority of their                                Exempts most small, direct farmer
products in direct sales to consumers, restaurants, or retail                           sales from the new FDA
stores, either within the producing state or within 275 miles                           requirements.
of the production facility, are subject to the modified hazard                     Sources: 21 U.S.C. §§ 223(d)(1), 350g, 350h, 350l
control requirements.9 In the case of a foodborne illness                          (2012); Food Safety Legislation Key Facts, U.S. FOOD &
outbreak or incident involving an exempt facility, the FDA                         DRUG ADMIN.,
                                                                                   http://www.fda.gov/downloads/Food/FoodSafety/
retains the authority to conduct more comprehensive                                FSMA/UCM263777.pdf (last visited Oct. 10, 2012).
inspections and reinstate some of the standard requirements
vis-à-vis that facility.10

Food policy councils should:
   Educate themselves on the requirements of FSMA and remain on the lookout for the small-entity
     guides to FSMA that FDA is required to produce.

2
  FDA Food Safety Modernization Act, 21 U.S.C. §§ 2201–2252 (2011). See also Food Safety Legislation Key Facts, U.S. FOOD & DRUG ADMIN.,
http://www.fda.gov/downloads/Food/FoodSafety/FSMA/UCM263777.pdf (last visited Oct. 9, 2012).
3
  See Snapshot of Food Safety Milestones in the History of the FDA, U.S. FOOD & DRUG ADMIN.,
http://www.fda.gov/downloads/Food/FoodSafety/FSMA/UCM263778.pdf (last visited Oct. 9, 2012).
4
  21 U.S.C § 350h (2012) (standards for produce safety).
5
  Id. § 350h(f) (exemption for direct farm marketing).
6
  Id. §§ 350h(f)(1), (4).
7
  21 U.S.C. §§ 350g, 350d (2012).
8
  21 U.S.C. § 350g(l) (2012).
9
  Id.
10
   Id. § 350g(l)(3)(A).


                                                                                                          Food Safety & Processing | 90
   Advocate that the state put out easy to understand guidance.
   Encourage the state to provide educational workshops on FSMA compliance.
   Educate producers and consumers about the small-scale producer exemptions.

Overview of State Food Safety Laws States share regulatory authority with the federal
government in many areas, but states enjoy complete jurisdiction over farmers markets and other types of
direct farm sales, retail sales, restaurants, and many types of small-scale agricultural production and
processing entities. In any given state, a variety of government agencies may have collective responsibility
for the safety of the retail and restaurant food supply. A non-exhaustive list of state agencies managing at
least one aspect of food safety includes: Agriculture, Business and Professional Regulation, Consumer
Protection, Environmental Conservation, Health & Human Services, Inspections & Appeals, and Social
Services. These state agencies (1) administer federal food
safety programs (if the state has adopted a cooperative
                                                                  GUIDANCE ON STATE FOOD SAFETY LAWS
agreement with the federal government), (2) create,
implement, and enforce state-level food safety regulations, Washington State’s Department of
and (3) provide guidance to industry participants on Agriculture has an Office of Compliance and
compliance with these federal and state laws.                    Outreach whose mission includes helping
                                                                  businesses ensure their operations are safe,
                                                                  increasing awareness of food safety laws and
Every state requires food-related businesses to comply with
                                                                  regulations, and protecting public health.
a variety of food safety regulations and licensing
requirements. While necessary to protect the public from Source: Office of Compliance & Outreach, WA. STATE
                                                                 DEP’T OF AGRIC.,
foodborne illness and food contamination, these regulations http://agr.wa.gov/FoodAnimal/OCO/ (last visited
often have the unfortunate side effect of making it difficult Oct. 25, 2012).
for small-scale producers and retailers to compete or even
survive in the local food industry. Therefore, state food
policy councils can:
   Push for the state to publish a readable food safety compliance guide for small businesses and to
      conduct frequent, accessible trainings for farmers and food producers to learn how these regulations
      apply to them.
   Advocate for the state to review its regulations to identify whether any of those that pose barriers for
      small-scale producers could be revised or eliminated.

QUALITY CERTIFICATION PROGRAMS FOR AGRICULTURAL PRODUCERS Fresh
fruits and vegetables are generally subject to the lowest level of food safety regulations. The produce safety
standards that will be promulgated by FDA under its new FSMA mandate (discussed above) will clearly
increase the amount of regulation in this area, but even with those regulations, fruits and vegetables will
likely remain subject to the least number of food safety laws.

Because fruit and vegetable production is subject to the least amount of food safety regulations and
inspections, historically many food distributors and institutional purchasers wanted to have a method of
identifying food that had been safely produced. In October 1998, FDA and USDA released a jointly-
authored industry guidance document entitled, ―Guide to Minimize Microbial Food Safety Hazards for




                                                                                    Food Safety & Processing | 91
Fresh Fruits and Vegetables.‖11 The Clinton administration prepared this guidance in response to growing
concerns about the safety of the U.S. produce supply that had been fueled by a number of prominent
foodborne illness outbreaks traced back to fruit and vegetable farms.12 Many large buyers reacted to the
Guide’s release by requiring their suppliers to undergo third-party audits.13 In 2002, USDA responded to
industry pressure for a federal audit program and used the recommendations in the 1998 Guide as a basis
for implementing USDA Good Agricultural Practices & Good Handling Practices (―GAP‖ & ―GHP‖) audit
verification programs, which continue to be used today.14

While neither federal nor state law requires fruit and vegetable producers to participate in these voluntary
quality certification programs, producers are increasingly finding that large-scale third-party buyers and
distributors will not accept foods that do not bear this official stamp of approval. However, the GAP audit
process is very costly for small-scale producers. USDA currently charges an administrative fee of $50 plus
$92/hour, including auditor travel time, for the audit.15 Many producers also find that the cost of GAP
compliance is itself prohibitive because audit standards often require them to make significant capital
improvements, such as adding fencing, building bathrooms for workers, or setting up systems to test water
quality. GAP audits are particularly expensive for those farmers who grow multiple crops, as each crop
must be audited separately.16 If a farmer grows different crops in different seasons, the USDA auditor must
come out multiple times per year. Because GAP audits must be performed annually, or even more often for
farmers with multiple seasonal crops, the costs of certifying a polyculture farming operation can increase
quite quickly.

State food policy councils can work to reduce barriers to local and small-scale agricultural production in a
number of ways:
   Encourage state legislatures to provide mini-grants, matching grants, and other financial support to
       farmers who wish to obtain GAP/GHP certification.
   Partner with state government and private institutions to design a state certification program that can
       serve as an alternative to the expensive federal audit process, as Massachusetts has done.17 The
       state-run Commonwealth Quality Seal program that operates in Massachusetts provides training that,
       when complete, gives a seal to vendors to allow consumers (and food management companies) to
       ―identify locally sourced products that are grown, harvested and processed . . . in Massachusetts using
       practices that are safe, sustainable and don’t harm the environment.‖18

11
   Guidance for Industry: Guide to Minimize Microbial Food Safety Hazards for Fresh Fruits and Vegetables, U.S. FOOD & DRUG ADMIN. (1998),
http://www.fda.gov/downloads/Food/GuidanceComplianceRegulatoryInformation/GuidanceDocuments/ProduceandPlanProducts/UCM1
69112.pdf.
12
   Id. at 1.
13
   Good Agricultural Practices and Good Handling Practices Audit Verification Program: User‟s Guide, U.S. DEP’T OF AGRIC., AGRIC. MKTG. SERV. 1
(2011), available at http://www.ams.usda.gov/AMSv1.0/getfile?dDocName=stelprdc5097151.
14
   Id.
15
   USDA GAP & GHP Audit Program Information, UNIV. OF VT. EXTENSION 1,
http://www.uvm.edu/vtvegandberry/GAPS/Audit%20Program%20Information%20-%20VT.pdf (last visited Oct. 9, 2012); Phil Tocco, Are
You Ready for a GAP Audit?, MICH. STATE UNIV. EXTENSION NEWS (May 25, 2011),
http://msue.anr.msu.edu/news/are_you_ready_for_a_gap_audit.
16
   The self-audit document produced by Penn State includes a box where the farmer will specify what crop is being audited. GAP Grower Self-
Audit, PENN. STATE EXTENSION, http://extension.psu.edu/food-safety/farm/how-does-my-farm-compare-with-national-gap-
standards/Checklist-with-Points-November-2009-5-25-10-G12.pdf/view (last visited Oct. 4, 2012).
17
   Commonwealth Quality, http://www.mass.gov/agr/cqp/ (last visited Nov. 13, 2012).
18
   HARVARD FOOD LAW & POLICY CLINIC, INCREASING LOCAL FOOD PROCUREMENT BY MASSACHUSETTS STATE COLLEGES & UNIVERSITIES 21 (Oct.
2012), http://blogs.law.harvard.edu/foodpolicyinitiative/files/2011/09/Increasing-Local-Food-Procurement-by-Mass-State-Colleges-
FINAL2.pdf.


                                                                                                             Food Safety & Processing | 92
      Work with local organizations, both private and public, to develop training seminars and other
       materials that reduce barriers to participation in the GAP/GHP certification program by making the
       process less intimidating and confusing for small producers.

FOOD SAFETY REGULATIONS FOR PROCESSED FOODS Processed foods are subject to a
number of stringent state and federal regulations. This section provides a brief background of both the
federal and state roles in regulating processed foods, including ―cottage food‖ operations (small-scale
producers that are permitted to make low-risk foods in their home kitchens).

Federal Regulation of Processed Foods The Federal Food, Drug and Cosmetic Act (―FDCA‖)
is the overarching legal framework that sets out the basic authority of the FDA to regulate processed foods
that travel in interstate or foreign commerce.19 The FDCA has been amended over the years by various acts
(including the Nutrition Labeling and Education Act and the Fair Packaging and Labeling Act) to create the
full set of laws by which food producers must abide. First, producers are barred from selling ―adulterated‖
foods.20 FDA has defined ―adulterated foods‖ and set out regulatory standards for good manufacturing
practices to protect processed foods from adulteration or foodborne illness.21 States are able to create
exemptions for small-scale producers that do not sell their products across state lines (products that are
limited to intrastate commerce).

Second, food producers are prohibited from selling ―misbranded‖ food and must satisfy certain
requirements for labeling of food packages.22 They are required to utilize uniform labels for foods sold in
interstate commerce;23 for example, they must list the item’s basic identity, nutrition, ingredients, and
source information on the package label.24 Additionally, food packages must clearly state the net quantity of
contents and must not be deceptively sized.25 There are a number of exemptions and modified requirements
in these labeling regulations.26 To illustrate, one of the exemptions covers small-scale producers who sell
their products interstate: small-scale producers who sell their products direct to consumers and do not
exceed $500,000 in annual gross sales are not subject to the nutrition labeling rules, as long as the label
makes no health or nutrition claims (as defined in the Code of Federal Regulations).27 Note that there is not
a distance limit in this provision, unlike the provisions in FSMA (discussed above).

State Regulation of Processed Foods State food codes or food safety regulations constitute
another important piece of the regulatory puzzle for food producers, processors, and retailers. Every four
years, the FDA publishes a new version of the federal ―Food Code,‖ which is a model set of rules that is
meant to guide states in promulgating their own regulations for food operations that do not fall under
federal jurisdiction (such as restaurants, retail food sales, direct marketing, and processed foods that are
only sold intrastate).28 The FDA does not require states to adopt the code, but many states have chosen to


19
   Food, Drug, and Cosmetic Act, 21 U.S.C. §§ 301-392 (2012).
20
   21 U.S.C. § 342 (2012).
21
   21 C.F.R. § 110.5 (2012).
22
   21 U.S.C. § 343 (2012).
23
   Nutrition Education and Labeling Act, 21 U.S.C. § 343-1 (2012).
24
   21 C.F.R. §§ 101.3(a), 101.4, 101.5 (2012).
25
   Fair Packaging and Labeling Act, 15 U.S.C. § 1453 (2012).
26
   21 C.F.R. § 101.9(j) (2012).
27
   Id. § 101.9(j)(1).
28
   FDA Food Code, U.S. FOOD & DRUG ADMIN., http://www.fda.gov/food/foodsafety/retailfoodprotection/foodcode/default.htm (last visited
Oct. 9, 2012).


                                                                                                      Food Safety & Processing | 93
do so because the code reflects the expertise and attention of dozens of the top food safety experts.29 The
FDA Food Code itself is not law and it only becomes binding when states adopt it by statute or regulation.
States typically add their own modifications by statute or regulation. Thus, states are not bound to adopt the
federal Food Code but, if they do, they can accept it in whole or in part and can always make modifications
to the rules that apply at the state level.

The federal labeling rules discussed above do not apply to foods that are only sold within the state. States set
the food naming and labeling requirements for foods that will not be sold in interstate commerce. 30
Although the naming and labeling requirements may be very similar to the federal rules, it is important to
remember that foods sold intrastate are governed by state rules, not federal rules.

While the FDA Food Code and related laws were meant to safeguard public health and uphold sanitation
standards, certain provisions may interfere with small-scale, local processing operations that might
otherwise provide nutritious foods to residents of food deserts and other high-need regions. State food
policy councils can work to:
   Push the state to publish guidance or educational materials for small-scale producers on its own food
      processing regulations.
   Advocate that the state review its regulations to eliminate, where possible without risking food
      safety, provisions that are barriers for small-scale food producers.

Cottage Food Regulations Although federal food processing laws do not apply to foods that will
not be sold across state lines, state food regulations, particularly those that have adopted the FDA Food
Code wholesale, often impose stringent requirements on small-scale food producers that make it difficult or
impossible for them to produce and sell their wares.

Many state food safety laws were written with large, commercial food entities in mind. These broad laws
tend to apply the same restrictions and requirements to all food processing entities, both large and small,
and both those that produce low-risk foods and those that produce higher-risk foods. However, small, in-
home food processing entities, called ―cottage food producers,‖ prepare only small-scale, non-potentially
hazardous foods, which are foods that do not support ―pathogenic microorganism growth or toxin
formation.‖31 Examples include fruit jams, certain baked goods, dried herbs, fruit pies, granola, and teas.32
Although state food safety laws are well-suited to governing wholesalers and mass producers of food
products, they may fail to achieve a proper balance when it comes to individuals who wish to sell on a local
or small-scale basis at farmers markets or similar venues (and not across state lines).

29
   See Real Progress in Food Code Adoptions, U.S. FOOD & DRUG ADMIN. 1 (July 2011),
http://www.fda.gov/downloads/Food/FoodSafety/RetailFoodProtection/FederalStateCooperativePrograms/UCM230336.pdf (noting that
forty-nine of the fifty states have adopted some version of the FDA Food Code).
30
   Fair Packaging and Labeling Act, 15 U.S.C. § 1461 (2012); Atl. Ocean Products, Inc. v. Leth, 292 F. Supp. 615, 618 (D. Or. 1968), aff'd sub
nom. Atl. Ocean Products Inc. v. Leth, 393 U.S. 127 (1968).
31
   FDA 2009 Food Code 1-201.10. Meat, dairy, and shellfish are all examples of potentially hazardous foods. However, less obvious foods such
as low-sugar jams, cooked vegetables, and low-acidity pickles and salsa are also considered potentially hazardous because they can support viral
or bacterial growth if not properly stored. In effect, if the food has the potential to cause harm to consumers when not kept under proper
temperature and storage conditions, the food is considered ―potentially hazardous.‖ See Legislative and Regulatory Recommendations to Allow Home-
Processing of Low-Risk Foods in Mississippi, HARVARD LAW SCH. HEALTH LAW & POLICY CLINIC 4–5 (2010), available at
http://blogs.law.harvard.edu/foodpolicyinitiative/files/2011/09/In-Home-Food-Safety-FORMATTED.pdf (providing additional detail on
the definition of ―potentially hazardous‖ foods).
32
   What is Cottage Food and Other FAQs, THE SUSTAINABLE ECONS. LAW CTR., http://www.theselc.org/cottagefood/faq/ (last visited Oct. 2,
2012). See, e.g., OHIO ADMIN. CODE 901:3-20-04 (2012) (listing cottage food products allowed).


                                                                                                               Food Safety & Processing | 94
Overly burdensome regulations on cottage food production can pose significant barriers to the development
of the local food economy. For many small agricultural producers, it is difficult to run profitable enterprises
by simply selling what they grow. Processing their raw agricultural products into ―value-added‖ foods
allows them to earn more money to support their entire operation and keeps them from dropping out of
the local food market. It also allows them to preserve and profit from excess produce that would otherwise
spoil and go to waste.

Balancing public health concerns with the opportunity to encourage small-time food producers to make a
profit without incurring significant startup costs, most states (42 as of the time of publication of this guide)
have carved out exemptions in their food safety laws allowing for the sale of non-potentially hazardous
foods processed in home kitchens, either without obtaining a permit or at least without undergoing
traditional permitting requirements.33 Although cottage food laws have similar elements across states, there
are quite a number of differences in how the states have gone about enacting their cottage food laws.
Examples of variation in these state laws include differences such as:
   To Whom Products Can Be Sold: In California, cottage food operators are permitted to sell
       directly to consumers or indirectly through restaurants or other retail establishments, subject to
       registration and permitting requirements.34 By contrast, in Arkansas, cottage food operators may
       only sell their products directly to consumers from the place the food was made, a farmers market, a
       county fair, or a special event.35
   Cap on Earnings: Some states do not have a cap on
       earnings for cottage food producers, but several states             GUIDANCE FOR COTTAGE FOOD
       do include such caps, which cover a wide range.                                 OPERATIONS
                                                               36
       Florida sets its limit at $15,000 annual gross sales.        New Mexico has published a guidance
       California’s cottage food law allows for annual document for cottage food operations that
       increases in earnings, starting with $35,000 in 2013, covers how to complete the home-based
       $45,000 in 2014, and capping out at $50,000 in food processing operation application and
       2015.37 Michigan has a $20,000 limit until 2017 at includes information on how to minimize
       which time the limit will increase to $25,000.38             food safety concerns.
   Licensure and Inspection: Michigan does not require Source: Guidance for Home-Based Food Processing
                                                                    Operations, NEW MEXICO ENV’T DEP’T, ENVTL.
       any licensure or inspection for cottage food HEALTH BUREAU,
       operations.39 By contrast, Washington requires a http://www.nmenv.state.nm.us/fod/Food_Progra
       cottage food operator to obtain a permit annually.40         m/documents/HBGuidancesFinal05-12.pdf (last
                                                                    visited Oct. 25, 2012).
   Labeling Requirements: Many state cottage food
       regimes specify particular labeling requirements. The
       labeling requirements in Maryland are typical. They

33
   Legislative and Regulatory Recommendations to Allow Home-Processing of Low-Risk Foods in Mississippi, HARVARD LAW SCH. HEALTH LAW & POLICY
CLINIC, 6 (2010), available at http://blogs.law.harvard.edu/foodpolicyinitiative/files/2011/09/In-Home-Food-Safety-FORMATTED.pdf.
Since the Mississippi Report was published, ten more states have adopted cottage food laws. Citation on file with author.
34
   Assem. B. 1616, 2011-2012 Gen. Assemb., Reg. Sess. (Cal 2012), available at http://leginfo.legislature.ca.gov/faces/billTextClient.xhtml.
Cottage Food Law Bill Language, THE SUSTAINABLE ECONS. LAW CTR., http://www.theselc.org/cottage-food-lawscottage-food-law-bill-language/
(last visited Oct. 2, 2012).
35
   ARK. CODE ANN. § 20-57-201(2)(B)(vi) (2012).
36
   FLA. STAT. ANN. § 500.80(1)(a) (West 2012) (Florida sets the limit at $15,000 annual gross sales).
37
   CAL. HEALTH & SAFETY CODE § 113758(a) (2012).
38
   MICH. COMP. LAWS § 289.4102(5) (2012).
39
   Id. § 289.4102(1).
40
   WASH. REV. CODE ANN. § 69.22.030 (West 2012) (requiring an annual permit).


                                                                                                            Food Safety & Processing | 95
        require the name of the product, name and address of the cottage food business, ingredients of the
        product in descending order of the amount of each ingredient by weight, net weight or net volume of
        the product, allergen information (as per federal labeling rules), nutritional information that complies
        with federal rules if a nutritional claim is made, and the statement (printed in 10 point or larger
        type): ―Made by a cottage food business that is not subject to Maryland’s food safety regulations.‖41

In order to support the growth of local food systems by allowing for cottage food production, state food
policy councils can:
   Encourage their state legislatures or agencies to create new legal regimes that govern cottage foods.
   Advocate that their state publish easy to understand guidance on complying with the state’s cottage
      food law, as New Mexico did (see text box). Florida’s Department of Agriculture also published
      several guidance documents for cottage food operators, one of which is a compilation of frequently
      asked questions.42 The Michigan Department of Agriculture and Rural Development and the
      Washington State Department of Agriculture provide two more examples of attempts at organizing
      this information in a clear, concise manner.43
   Create documents that educate cottage food producers on the applicable rules and regulations.
   Push the state to ensure the regulations of cottage food operations are not overly burdensome. Even
      after cottage food laws are passed, regulations promulgated by the relevant state agency may impose
      additional requirements that seem to defeat the purpose of passing cottage food laws in the first place.

MEAT, POULTRY, & EGG PROCESSING FOR SMALL-SCALE PRODUCERS                                                  The
regulation of meat, poultry, and egg processing is an area of much confusion for local producers. The
complexity of these federal and state legal regimes deter many would-be producers from entering the
market and create huge costs for existing producers, preventing them from remaining competitive if they
can stay in business at all. In addition, many state legal regimes fail to accommodate innovations like mobile
slaughter and processing units that could help to strengthen local food systems and cultivate healthy
agricultural industries. This section will provide an overview of federal and state inspection regulations and
their many complex exceptions, review some of the challenges facing small-scale producers, and propose
possible policy solutions that would make it easier for local producers to enter and remain in this business.

Federal Regulatory Scheme The federal government has the authority to regulate many aspects of
processing and production for meat and poultry slaughterhouses and egg farms whose products are destined
for interstate commerce. Meat, poultry, and eggs cannot be sold in interstate or foreign commerce without
federal inspection by USDA’s Food Safety and Inspection Service (FSIS).44 Different products are subject to
different types of inspection under federal authority. The basic federal rules and exemptions from federal
inspection that are available to many different small-scale producers are discussed below.

41
   MD. HEALTH GEN. § 21-330.1(c)(2) (2012).
42
   Cottage Food Legislation Frequently Asked Questions, FL. DEP’T OF AGRIC., & CONSUMER SERVS.,
http://www.freshfromflorida.com/fs/CottageFoodFAQsandFormNumber.pdf (last visited Oct. 25, 2012).
43
   Michigan Cottage Foods Information, MICH. DEP’T OF AGRIC. & RURAL DEV., http://www.michigan.gov/mdard/0,4610,7-125-50772_45851-
240577--,00.html (last visited Oct. 2, 2012); Cottage Food Operation, WASH. STATE DEP’T OF AGRIC.,
http://agr.wa.gov/FoodAnimal/CottageFoodOperation/ (last visited Oct. 2, 2012).
44
   Federal Meat Inspection Act, 21 U.S.C. §§ 603-606(a), 610 (2012); Poultry Products Inspection Act, 21 U.S.C. §§ 455, 458 (2012); Egg
Products Inspection Act, 21 U.S.C. §§ 1034, 1037 (2012). There are certain situations, however, where meat that is processed in a state-
inspected facility can be sold interstate; a new voluntary ―cooperative interstate shipping program‖ allows the sale in interstate commerce of
certain poultry products from certain small state-inspected establishments. 21 U.S.C. § 472 (2012); 9 C.F.R. § 381.187 (2012). ―Small‖
establishments are those with an average of fewer than 25 employees. 21 U.S.C. § 472 (2012).


                                                                                                              Food Safety & Processing | 96
Meat
  Meat inspection must occur at each of several stages: the animal is inspected prior to slaughter, the
     carcass is inspected prior to processing, and the meat product is inspected prior to shipment or sale.45
     Slaughterhouses and processing facilities are also required to be federally inspected and products from
     unsanitary establishments are considered ―adulterated‖ and may not be sold.46 Meat sold in interstate
     commerce generally must be inspected by a federal inspector, while meat sold intrastate can be
     inspected by state inspectors in states that have created a state program.
  Meat is exempt from federal or state inspection if it is processed exclusively for personal
     consumption.47 This exemption also applies to live animals that are sold through community-
     supported agriculture (―CSA‖) networks and other custom meats that are sold when the animal is still
     alive.48 Meat processing is also exempt when processed on-site at a retail establishment (such as a
     grocery store).49

Poultry
  Inspection of the animal may be required prior to slaughter and inspection of the poultry product may
     be required prior to shipment or sale, but all carcasses must be inspected prior to processing. 50
     Poultry sold in interstate commerce generally must be inspected by a federal inspector, while poultry
     sold intrastate can be inspected by state inspectors in states that have created a state program.
  Small scale poultry producers are eligible for two different types of exemptions from inspection.
       1) Those who slaughter or process fewer than 20,000 birds per year, sell only locally (e.g. not
            across state lines), and do not process their products at shared facilities are exempt from
            inspection for the following types of sales: (1) on-farm sales of poultry raised and processed on-
            site; (2) direct-to-consumer and direct-to-institution sales; (3) preparation of meals that will be
            sold directly to consumers; and (4) sales by small producers.51
       2) Those who process fewer than 1,000 birds per year and refrain from selling those birds in
            interstate commerce are exempt from the Act, provided that they sell only birds raised on their
            own farms.52

Eggs & Egg Products
  Eggs and egg products are subject to continuous inspection during processing unless they qualify for
     one of several limited exemptions.53 Eggs and egg products sold in interstate commerce generally

45
   21 U.S.C. §§ 603-606(a), 610 (2012).
46
   21 U.S.C. §§ 608, 610 (2012).
47
   9 C.F.R. § 303.1(a) (2012).
48
   Katherine McNamara, Update on On-Farm Slaughter, VT. AGENCY OF AGRIC. 2–3 (Dec. 2010), available at
http://www.vermontagriculture.com/fscp/meatInspection/documents/update_on_farm_slaughter.pdf.
49
   Retail-exempt entities must comply with other rules, namely retail markets are prohibited from selling to other retail markets and
wholesalers. A retail-exempt entity is permitted to sell products they processed to food service entities, subject to certain monetary and quality
requirements. Chad Carr, Larry Eubanks, & Ryan Dijkhuis, Custom and Retail Exempt Meat Processing, UNIV. OF FLA. INST. OF FOOD & AGRIC. SCI.
EXTENSION (Nov. 2011), available at http://edis.ifas.ufl.edu/pdffiles/AN/AN20400.pdf.
50
   21 U.S.C. §§ 455, 458 (2012). The FDA regulates the sale of chicken broth and similar products. See 9 C.F.R. § 381.15 (2012).
51
   Exempted products must be both ―sound and healthy‖ when slaughtered and they must be slaughtered and handled under ―sanitary standards,
practices, and procedures.‖ 9 C.F.R. §§ 381.10(a)(5)-(7), 381.10(b), 381.10(c) (2012). The shared facilities prohibition may be waived by
FSIS. 9 C.F.R. § 381.10(b)(2) (2012).
52
   9 C.F.R. § 381.10(c) (2012).
53
   21 U.S.C. §§ 1034, 1037 (2012).


                                                                                                                Food Safety & Processing | 97
       must be inspected by a federal inspector, while eggs and egg products sold intrastate can be inspected
       by state inspectors in states that have created a state program.
      Egg producers may process and sell eggs from their own flocks directly to consumers without being
       subject to any inspections.54

With regard to meat, poultry, and egg product processing, food policy councils should:
  Familiarize themselves with the legal landscape and exemptions, so that they can guide local
     producers in navigating their legal rights and duties.
  Push the state to publish guidance for small-scale producers describing the federal and state
     regulations that apply to them and laying out how to comply with these regulations.
  Consider partnering with public or private entities to produce guidebooks, trainings, and other
      resources for individuals who would like to start new meat or poultry production operations, which
      would decrease the cost and difficulty of complying with these complex regulatory obligations.

State Regulatory Scheme Federal inspection regulations apply to meat/poultry products that are
sold in interstate or foreign commerce, and also to meat/poultry products that are sold intrastate, unless
one of the exemptions applies or there is a state regulation program in place. A state regulation program
allows states to have their own slaughtering and processing regulations for meat or poultry that is
slaughtered and processed within the state and is only sold within the state.

State governments are permitted to establish their own inspection regimes that are ―at least equal to‖ the
federal programs set out in the meat, poultry, and egg inspection statutes for products that are to be sold
intrastate.55 According to USDA FSIS, as of 2007, 25 states had created such state-level programs for both
meat and poultry, and two more had created state inspection programs for meat only.56

These state-run programs can significantly reduce costs for slaughterhouse operators, as states may be able
to operate their inspection programs more cheaply than the USDA program and they can pass these savings
along to producers or parlay these savings into greater access and guidance for local producers. Putting the
program in the hands of the state means that the state can take steps to help offset the costs or find ways to
achieve more processing facilities for small-scale producers. States have a vested interest in making
processing facilities available for their farmers and producers because these entities can have a major impact
on economic opportunity and economic development in the state.

Because states have the authority to regulate slaughter and processing of meat and poultry products to be
sold in-state, state food policy councils should:
   Advocate for their state to implement a state inspection program, if there is not one already in place.
   Push their state governments to review their regulations and revise or eliminate the ones that create
       unnecessary barriers to local production of meat and poultry.



54
   9 C.F.R. §§ 590.100(e), (g) (2012).
55
   Federal Meat Inspection Act, 21 U.S.C. §§ 601–695 (2012); Poultry Products Inspection Act, 21 U.S.C. §§ 451–472, 454(a) (2012); 9
C.F.R. § 381.185 (2012); Egg Products Inspection Act, 21 U.S.C. §§ 1031–1056 (2012).
56
   Listing of Participating States, USDA FOOD SAFETY & INSPECTION SERV.,
http://www.fsis.usda.gov/regulations_&_policies/Listing_of_Participating_States/index.asp (last visited Oct. 10, 2012).


                                                                                                         Food Safety & Processing | 98
      Encourage the state to identify local needs and invest state funds in processing capacity that will
       improve access to these facilities for small producers and thus improve the state food system and
       foster opportunities for economic development.

There are two major areas in which state food policy councils can advocate for improved policies to support
small-scale producers: local slaughter and processing facilities and mobile slaughter and processing units.

Local Slaughter & Processing Facilities Producers often have to travel long distances, sometimes out
of the state, to get their meat and poultry slaughtered, which adds significant costs to their operations.57
States have a unique opportunity to support the development of small-scale local slaughterhouses.
Organizations around the U.S., such as the Cattle Producers of Washington, are popping up, with the
intention of helping to build small, local slaughterhouses to cater to smaller-scale meat producers.58

State food policy councils can help develop local slaughter infrastructure by:
   Pushing the state to provide grants or low-interest loans to ease the financial burden of building a
       local slaughterhouse. For example, the local legislature of Sullivan County, New York approved an
       appropriation of $150,000 to build a regional slaughterhouse.59 Although this is funded by local
       government, rather than state, it provides a good model of what a state could do and a great example
       for food policy councils to use when advocating for state funding to create such entities, similar to the
       Vermont mobile slaughter and processing unit example described below. Regarding loans, Alaska
       has operated an Agricultural Revolving Loan Fund (―ARLF‖) since 1953, with the goal of promoting
       the development of the state’s agricultural sector.60 Producers can obtain fixed-rate 4.5% loans of up
       to $250,000 to ―build and equip facilities to process Alaska agricultural products.‖61
   Advocating that the state review its slaughter laws and regulations to make sure that local
       slaughterhouses do not face unnecessary obstacles with regard to construction, permitting, or
       operations.
   Encouraging the state to publish guidance and educational materials on the laws and regulations
       governing local slaughterhouses so small-scale producers and groups intending to build local
       slaughterhouses will have a streamlined resource to use in moving forward with their projects.

Mobile Slaughter & Processing Facilities Because it is expensive to construct the facilities and
maintain regulatory compliance for traditional slaughterhouses, innovative local food advocates have begun
to explore mobile processing options for a range of food products, including meat and poultry. Mobile
slaughter and processing units for meat and poultry have been increasing in popularity recently.62 These
mobile units have significant advantages over fixed slaughterhouses, including lower costs and the ability to
provide their services to farmers in a larger geographic area, making it easier for them to recoup their


57
   Beth Hoffman, Small-Scale Slaughterhouses Aim to Put the „Local‟ Back in Local Meat, NPR.ORG (June 4, 2012, 11:11am),
http://www.npr.org/blogs/thesalt/2012/06/04/153511889/small-scale-slaughterhouses-aim-to-put-the-local-back-in-local-meat.
58
   Meat Processing, CATTLE PRODUCERS OF WA. LIVESTOCK PROCESSORS CO-OP. ASSOC., http://www.cattleproducersofwa.org/Livestock-
Processors-Co-Op.html (last visited Oct. 25, 2012).
59
   Sullivan OKs Funds for Slaughterhouse, TIMES HERALD-RECORD ONLINE (Oct. 26, 2010, 2:00am),
http://www.recordonline.com/apps/pbcs.dll/article?AID=/20101026/NEWS/10260336.
60
   Agricultural Revolving Loan Fund, ALASKA DEP’T OF NATURAL RES., http://dnr.alaska.gov/ag/ag_arlf.htm (last visited Oct. 10, 2012).
61
   Id.
62
   Mobile Slaughter/Processing Units, UNIV. OF MASS. EXTENSION, CTR. FOR AGRIC., http://www.extension.org/pages/19234/mobile-
slaughterprocessing-units (last visited Oct. 17, 2012).


                                                                                                          Food Safety & Processing | 99
investments more quickly.63 However, two major barriers have stood in the way of entrepreneurship in this
area: state legal barriers and lack of funding.

Various legal barriers stand in the way of the creation of mobile meat and poultry slaughter and processing
units. As discussed above, USDA regulations stipulate that state-equivalent inspections may be substituted
for federal inspections for producers that do not ship their products in interstate commerce.64 Because state-
level inspection regimes vary widely between states, it is important for state food policy councils to
determine whether their state has adopted a state inspection regime and, if state inspection is authorized,
what rules or exemptions the state provides.

Even in states where the legal regime is friendly to local meat         REMOVING LEGAL BARRIERS FACING
slaughter and processing and allows for mobile processing                     MOBILE SLAUGHTERHOUSES
entities, funding and access to capital are huge barriers to the
                                                                      Grow Montana, a food policy
creation of mobile processing units. Even mobile processing advocacy group, has charted the course
units have high start-up costs and compliance regulations, and for advocacy to remove legal barriers to
many food entrepreneurs find it difficult to enter the market mobile slaughterhouses. In 2005, Grow
without financial assistance. States have adopted a range of Montana successfully pushed for the
strategies to facilitate the proliferation of mobile processing passage of a bill that amended Montana’s
units in their jurisdictions, such as:                                livestock processing statute to define
                                                                      ―mobile slaughter facility‖ and add
    A private group of producers and professors in
                                                                      language authorizing the Montana
       Kentucky received a $50,000 grant from the state’s Department of Livestock to inspect such
       Department of Agriculture and combined it with a private facilities.25 This small change enabled the
       research grant to build a mobile poultry processing unit.65 Montana Poultry Growers Cooperative
       The team initially faced legal barriers but they were able to develop a new mobile processing unit
       to partner with the state’s Department of Public Health that has been operating in the state since
       and were authorized by the USDA to operate under a 2010.
       version of the 20,000-bird exemption to federal Sources: Policies, GROW MONT.,
       inspection.66                                                  http://www.growmontana.ncat.org/policies.ph
                                                                      p (last visited May 8, 2012); Stephen Thompson,
    The Vermont legislature appropriated $80,000 in grant Going Mobile, RURAL COOPERATIVES (Nov.–Dec.
       money to be used in conjunction with $16,000 from a 2010),
       private foundation to design and build a mobile poultry http://www.rurdev.usda.gov/rbs/pub/nov10/
                                                                      going.htm.
       processing unit.67 In its inaugural year (2009), the unit
       was used 25 times in 12 different locations.68 Because the
       state was acting as the poultry inspector, it could not
       operate the unit directly, and had to lease the unit to an operator.69 After the original operator
       declined to renew the lease, the state sold the unit in 2012 to new operators who are creating a plan

63
   See Mobile Slaughter Unit Compliance Guide, U.S. DEP’T OF AGRIC. 2 (2010), available at
http://www.fsis.usda.gov/PDF/Compliance_Guide_Mobile_Slaughter.pdf; Stephen Thompson, Going Mobile, RURAL COOPERATIVES (Nov.–
Dec. 2010), http://www.rurdev.usda.gov/rbs/pub/nov10/going.htm.
64
   21 U.S.C. § 464 (poultry and poultry products exemptions), § 623 (meat products exemptions) (2012).
65
   Tess Caudill et al., Creating Kentucky‟s Mobile Processing Unit, KY. DEP’T OF AGRIC. 1 (2002), available at
http://www.ca.uky.edu/smallflocks/Factsheets/KY_mobile_processing_unit.pdf.
66
   Id.
67
   Press Release, Mobile Poultry Processing Unit Purchased by Middlesex-based Tangletown Farm (Jan. 26, 2012), available at
http://vtdigger.org/2012/01/26/mobile-poultry-processing-unit-purchased-by-middlesex-based-tangletown-farm/.
68
   Helen Labun Jordan et al., Analysis of Vermont‟s Food System: Food Processing and Manufacturing, 3.4 Food Processing and Manufacturing, VT.
SUSTAINABLE JOBS FUND 27 (2011), available at http://www.vsjf.org/assets/files/Agriculture/Strat_Plan/3.4_Food%20Processing.pdf.
69
   Id.


                                                                                                            Food Safety & Processing | 100
       for how to use the unit to conduct humane slaughter on
       farms around the state.70 This is a great example of how a                                     MODEL STATE: VERMONT
       state can support mobile processing. Vermont realized that
       processing capacity was essential to the state’s economic                               In Vermont, the construction of a
                                                                                               mobile poultry slaughtering unit and a
       development and food system success, and it was willing to
                                                                                               mobile flash-freeze unit for berries
       utilize state funds to create such processing infrastructure.                           were funded by an appropriation from
      Although Alaska’s Agricultural Revolving Loan Fund                                      the state legislature. These were
       (described above) has not been used to finance a mobile                                 provided in order to encourage and
       slaughter and processing unit, money from a fund like this                              assist local farmers in processing
       could be used for a mobile slaughter and processing unit.                               locally. They were designed and
                                                                                               constructed under the direction of the
Because funding is one of the main barriers to an increase in the                              Vermont Agency of Agriculture and
                                                                                               then operated by a local business.
scale of mobile meat and poultry processing at the state level,
food policy councils should:                                                                   Source: Vermont Legislature, Budget Bill, Act
                                                                                               65 of 2007, Sec. 82(a) (2012).
   Ensure that the state has regulations that allow mobile
      slaughter operations.
      Push states to purchase or invest in the creation of mobile slaughter and processing units to serve
       areas and producers that would otherwise be neglected by private entities.
      Work with the state to create loan or grant programs that would help support private entrepreneurs
       hoping to enter this market.
      Advocate that the state publish guidance on slaughter and processing regulations to facilitate small-
       scale producers in their efforts to develop mobile slaughter and processing facilities.

CONCLUSION Food safety is a concern at every level of the food chain. Striking a balance between
adequately protecting consumers from foodborne illnesses and making the system affordable for
producers—especially small-scale producers—is critical. State food policy councils should review their
states’ food safety rules, quality certification programs, meat, poultry and egg processing regulations, and
cottage food laws, to ensure they are best tailored to balance these two crucial interests while meeting the
state’s unique needs.




70
  See Steve Zind, State Sells Mobile Poultry Processing Unit, VT. PUB. RADIO NEWS (Jan. 26, 2012),
http://www.vpr.net/news_detail/93202/state-sells-mobile-poultry-processing-unit.


                                                                                                              Food Safety & Processing | 101
SECTION IX: RESOURCES
GENERAL
  Good Laws, Good Food: Putting Local Food Policy to Work for Our
  Communities
  About: This toolkit is a resource primarily for local food policy councils (but also helpful to individuals and
  groups) seeking to inform and influence food law and policy in their city or county. It provides an in-depth
  analysis and set of recommendations for how food policy councils can enact change in their local food systems.
  This toolkit is the first of the two-part series, of which this state toolkit is the second part.
  Find at: http://www.law.harvard.edu/academics/clinical/lsc/documents/FINAL_LOCAL_TOOLKIT2.pdf
  Published by: The Harvard Food Law & Policy Clinic

  Community Food Security Coalition Guidebooks and Reports
  About: A general resource linking to a wide range of publications and handouts on a multitude of food law and
  policy topics. The database also includes a summary of each publication. It is an excellent place to start when
  looking for additional information on an aspect of food law and policy.
  Find at: http://foodsecurity.org/publications/
  Published by: Community Food Security Coalition

  Doing Food Policy Councils Right: A Guide to Development and Action
  About: Doing Food Policy Councils Right walks the reader through the various steps of creating and working as a
  food policy council. This guide covers the history food policy councils, provides examples of existing councils,
  and gives practical advice for councils (e.g., structure of the council, funding, and partnerships).
  Find at: http://www.markwinne.com/wp-content/uploads/2012/09/FPC-manual.pdf
  Published by: Mark Winne Associates

  Food Policy Councils: Lessons Learned
  About: Food Policy Councils: Lessons Learned describes the structure of, and methods used by, successful food
  policy councils as well as the barriers they commonly face. The report contains a wealth of information for
  councils, including an overview of relevant food policy issues, a discussion on the importance of local and state
  food policy, and examples of policy initiatives that councils have engaged in.
  Find at: http://foodsecurity.org/pub/Food_Policy_Councils_Report.pdf
  Published by: Food First and the Community Food Security Coalition

  The National Agricultural Law Center’s Local Food Systems Reading Room
  About: Funded through federal appropriations and based at the University of Arkansas School of Law, the
  National Agricultural Law Center conducts legal research into issues facing food and agriculture. Its online
  “reading rooms” are comprehensive compilations of articles, notes, case summaries, and other resources on
  dozens of topics. The Center’s “Local Food Systems” reading room contains federal statutes and regulations, case
  law, Congressional Service Research reports, and a wide range of other publications and resources on legal and
  regulatory issues affecting local food systems.
  Find at: http://www.nationalaglawcenter.org/readingrooms/localfood/
  Published by: The National Agricultural Law Center



                                                                                                   Resources | 102
FARM TO INSTITUTION
  Farm to Hospital: Supporting Local Agriculture and Improving Health Care
  About: A report on establishing farm to hospital programs. The programs seek to improve health in hospitals
  outside of the operating room, in hospital cafeterias and kitchens. The report provides guidance both on how
  hospitals can improve their food and how local growers can connect with hospitals. It also features two brief case
  studies of successful hospital programs.
  Find at: http://www.foodsecurity.org/uploads/F2H_Brochure-Nov08.pdf
  Published by: Center for Food and Justice of the Urban and Environmental Policy Institute of Occidental
  College

  Farm to College Program
  About: A great resource for advocates looking for general information on farm to university programs, how to
  get started, and what some current examples look like.
  Find at: http://www.farmtocollege.org
  Published by: Community Food Security Coalition

  From Farm to Fork: A Guide to Building North Carolina’s Sustainable Local
  Food Economy
  About: This comprehensive guide is the product of a yearlong North Carolina “Farm to Fork” initiative. It
  explores the processes of strengthening systems of local food procurement and of developing statewide food
  system infrastructure. Targeted at the state level, the guide aims to provide key statewide and local
  recommendations for action ideas to build a sustainable food economy and offers examples for external policy
  makers and consumers to adapt for the transformation of their own food systems.
  Find at: http://www.cefs.ncsu.edu/resources/stateactionguide2010.pdf
  Published by: Center for Environmental Farming Systems, a partnership between N.C. State University, N.C.
  Agricultural and Technical State University, and the N.C. Department of Agriculture and Consumer Services.

  Local Foods: From Farm to College and University Foodservice
  About: A report identifying reasons why colleges and universities are increasing purchasing from local sources
  and obstacles to such programs. It also provides an overview of current farm to university programs and a profile
  of Iowa’s programs.
  Find at: http://www.extension.iastate.edu/NR/rdonlyres/B0D64A49-9FA9-410E-849A-
  31865EFECE91/65253/manuscript2004003final_version.pdf
  Published by: Catherine H. Strohbehn and Mary B. Gregoire, Iowa State University

  National Farm to College Program
  About: A resource on farm to college programs—why we need them, how they work, and the type of
  assistance the National Farm to College Program offers.
  Find at: http://www.foodsecurity.org/farm_to_college.html
  Published by: Community Food Security Coalition




                                                                                                    Resources | 103
FOOD ASSISTANCE PROGRAMS
  Building a Healthy America: A Profile of the Supplemental Nutrition
  Assistance Program
  About: This report provides a detailed overview of the Supplemental Nutrition Assistance Program (SNAP).
  Find at: http://www.fns.usda.gov/ORA/menu/Published/SNAP/FILES/Other/BuildingHealthyAmerica.pdf
  Published by: USDA Food and Nutrition Service, Office of Research and Analysis

  Review of Strategies to Bolster SNAP’s Role in Improving Nutrition as well
  as Food Security
  About: A report assessing how SNAP can play a bigger role in fighting obesity. There are several strategies
  featured that states can use to improve the SNAP benefits for residents in their states.
  Find at: http://frac.org/wp-content/uploads/2011/06/SNAPstrategies.pdf
  Published by: Food Research & Action Center

  SNAP: Putting Healthy Foods within Reach, State Outreach Toolkit
  About: A toolkit for states on how to increase SNAP participation of their residents. It includes tools for SNAP
  outreach to individuals who may be eligible for SNAP and tailoring outreach to unique audiences.
  Find at: http://www.fns.usda.gov/snap/outreach/pdfs/toolkit/2011/State/toolkit_Complete.pdf
  Published by: USDA Food and Nutrition Service

  Access and Access Barriers to Getting Food Stamps: A Review of the
  Literature
  About: A comprehensive report on participation rates in the food stamp program, general barriers to
  participation, barriers to participation for specific groups (including low-income, seniors, disabled individuals,
  immigrants, households with children, and able-bodied adults without dependents), and how to overcome these
  barriers.
  Find at: http://frac.org/newsite/wp-content/uploads/2009/09/fspaccess.pdf
  Published by: Food Research & Action Center

  State Implementation of the New WIC Produce Package
  About: This report outlines the opportunities and barriers facing WIC clients to use their benefits at farmers
  markets. It gives an overview of the WIC Package Rule and the issue of states authorizing farmers as vendors for
  the new cash value vouchers for fruits and vegetables.
  Find at: http://www.foodsecurity.org/pub/WIC-FarmesMarketReport.pdf
  Published by: Community Food Security Coalition

FOOD SAFETY
  Vermont Farm to State Strategic Plan: 4.7 Food System Regulation
  About: Part of Vermont’s 10-year Farm to Plate strategic plan to strengthen the state’s food system, this section
  addresses the regulatory framework in place for food safety, broadly conceived. It addresses health and safety,
  informing consumers about food origins, and expanding local food systems in Vermont.



                                                                                                    Resources | 104
  Find at: http://www.vsjf.org/assets/files/Agriculture/Strat_Plan/4.7_Food%20System%20Regulation.pdf
  Published by: Vermont Sustainable Jobs Fund, Farm to Plate Strategic Plan

  Legislative and Regulatory Recommendations to Allow Home-Processing of
  Low-Risk Foods in Mississippi
  About: A report on the benefits of in-home food production laws and overview of the current status of such
  laws in the U.S. It also includes a guide for Mississippi on how to implement such laws.
  Find at: http://blogs.law.harvard.edu/foodpolicyinitiative/files/2011/09/In-Home-Food-Safety-
  FORMATTED.pdf
  Published by: The Harvard Food Law & Policy Clinic

  A Citizens Guide to Food Recovery
  About: A USDA guide on food recovery programs for businesses, community-based profit or non-profit
  organizations, citizens, and public officials. It includes legal considerations and food safety issues.
  Find at: http://infohouse.p2ric.org/ref/40/39578.htm
  Published by: USDA

LAND USE
  Farmland Information Center
  About: A public/private partnership between USDA Natural Resources Conservation Service and American
  Farmland trust, which collects and provides information about farmland protection and stewardship. The website
  includes an online database of relevant laws, literature and technical resources. Farmland Information Center also
  offers information specialists providing reference materials and basic technical assistance by phone, email and fax
  free of charge.
  Find at: http://www.farmlandinfo.org/
  Published by: USDA Natural Resources Conservation Service and American Farmland Trust

  American Farmland Trust Publications
  About: A database of publications on a wide range of land use topics, including planning for agriculture guides,
  landowner guides, and various fact sheets on conservation easements, land protection programs, tax and estate
  planning, purchase of conservation easements (PACE), and transfers of development rights (TDRs), among many
  others. A list of fact sheets can be found on the right hand side of the page. Individual links to the most relevant
  fact sheets are included here.
  Find at: http://www.farmland.org/resources/publications/default2.asp
       Conservation Easements: http://www.farmlandinfo.org/documents/27762/ACE_1-04.pdf
       Agricultural Conservation Easements: http://www.farmlandinfo.org/documents/27762/ACE_01-
       2011_.pdf
       Purchase of Conservation Easements (PACE) Programs:
       http://www.farmlandinfo.org/documents/38371/PACE_State_07-20111.pdf
       Transfer of Development Rights (TDRs): http://www.farmlandinfo.org/documents/37001/TDR_04-
       2008.pdf
  Published by: American Farmland Trust




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  Fact Sheet: The Farmland Protection Toolbox
  About: An overview of thirteen tools and techniques that can be used to protect farmland and support the
  economic viability of agriculture.
  Find at: http://www.farmlandinfo.org/documents/27761/fp_toolbox_02-2008.pdf
  Published by: American Farmland Trust: Farmland Information Center

  Purchase of Development Rights and Conservation Easements: FAQs
  About: A succinct overview of purchase of development rights (PDRs) and conservation easements and answers
  to frequently asked questions on the subject.
  Find at: http://aces.nmsu.edu/pubs/research/economics/tr34.pdf
  Published by: John B. Wright and Rhonda Skaggs, New Mexico State University

  Purchase of Development Rights: Conserving Lands, Preserving Western
  Livelihoods
  About: A general overview of PDRs, describing what, where and how they are used. Although the information
  is ten years old, it is still a great resource for background information on PDRs and their uses.
  Find at: http://westgov.org/wga/publicat/pdr.pdf
  Published by: Western Governors’ Association, Trust for Public Land, and National Cattlemen’s Beef
  Association.

SCHOOL PROCUREMENT POLICIES AND RESOURCES
  Legislative Recommendations for a Statewide Farm to School Bill in
  Mississippi
  About: A guide for implementing a statewide farm to school bill in Mississippi, written by Harvard Law
  School’s Health Law and Policy Clinic and Mississippi Delta Project.
  Find at: http://blogs.law.harvard.edu/foodpolicyinitiative/files/2011/09/FTS-legis-recs-FINAL-12-5.pdf
  Published by: The Harvard Health Law & Policy Clinic and Mississippi Delta Project

  National Farm to School Network
  About: A resource supporting the work of local farm to school programs around the country, including training
  and technical assistance, information services, and networking with leads in all 50 states.
  Find at: http://www.farmtoschool.org/

  Michigan Farm to School Purchasing Guide
  About: The Michigan Farm to School Purchasing Guide outlines the steps required for a Michigan school to procure
  local farm ingredients, including processes such as sorting through vendor identification and creating the
  language and content of school wellness policies. The guide includes example forms for school use for every step
  of the procurement process as well as resources for assessing a school’s interest in undergoing a Farm to School
  program.
  Find at: http://www.mifarmtoschool.msu.edu/assets/farmToSchool/docs/MIFTS_Purchasing_Guide.pdf
  Published by: Betty T. Izumi and Colleen Matts, C.S. Mott Group for Sustainable Food Systems at Michigan
  State University




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Strategic Alliance: School Food Environment
About: This web resource compiles a wealth of school food policies across the United States and UK. Several
organizations and programs are included that provide tools related to school food procurement and the
regulation of competitive school food products such as vending machines.
Find at: http://eatbettermovemore.org/sa/enact/school/school_snacks_2b.php
Published by: Eat Better Move More, Strategic Alliance, ENACT

Local School Wellness Policies: How are Schools Implementing the
Congressional Mandate?
About: This brief conducted by the Robert Wood Johnson Foundation evaluates the implementation successes
and challenges of several local school wellness policies. The report includes compiled data on the “quality,
evaluation and funding of the policies; nutrition standards and nutrition education requirements; and physical
activity requirements” of local wellness policies. The brief provides statistics from various schools throughout the
United States in each of these areas and concludes with recommendations for change and improvement.
Find at: http://www.rwjf.org/files/research/20090708localwellness.pdf
Published by: The Robert Wood Johnson Foundation

Tools for Evaluating School Wellness Policies
About: The School Wellness evaluation tools from the Yale Rudd Center for Food Policy and Obesity provide
two questionnaires that may be used by schools and school districts within the state of Connecticut and across the
country to determine the effectiveness of their school’s wellness policy.
Find at: http://www.yaleruddcenter.org/what_we_do.aspx?id=160
Published by: Yale Rudd Center for Food Policy and Obesity

Procurement Geographic Preference Q&As
About: A Question-and-Answer based memo that addresses some of the uncertainties and subtleties of School
Food Authorities (SFA) and their procurement of local and/or farm-sourced food, particularly in reference to
geographic preference in procuring locally unprocessed food.
Find at: http://www.fns.usda.gov/cnd/governance/Policy-Memos/2011/SP18-2011_os.pdf
Published by: USDA Food and Nutrition Service

School Nutrition . . . by Design!
About: The report of the Advisory Committee on Nutrition Implementation Strategies, School Nutrition…by
Design!, recommends specific strategies which school districts can adopt to “model healthy eating habits for their
students.” The report is structured around the creation of “standards” that assure each student receives equal
access to “quality food and drink.” It does so by following nine Design Principles (values) and their corresponding
Quality Indicators (best practices), all of which model an exemplary system of standards that are replicable and
applicable as pieces of an improved school nutrition program.
Find at: http://www.cde.ca.gov/ls/nu/he/documents/schnutrtn071206.pdf
Published by: The California Department of Education




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      THE HARVARD LAW SCHOOL FOOD LAW AND POLICY CLINIC
was established in 2010 to connect Harvard Law students with opportunities to provide
pro bono legal assistance to individuals and communities on various food policy issues.
The Clinic aims to increase access to healthy foods, prevent diet-related diseases such as
obesity and type 2 diabetes, and assist small farmers and producers in participating in
local food markets.



                The primary authors of this toolkit
  Emily Broad Leib, Director of the Harvard Food Law and Policy Clinic
                                      &
  Alli Condra, Clinical Fellow in the Harvard Food Law and Policy Clinic

                      ________________________________



                            MARK WINNE ASSOCIATES
was established in 2012 by Mark Winne. Winne was co-founder of the Community
Food Security Coalition, where he worked from 2005 to 2012 on federal food and farm
policy issues and food policy councils. He has extensive experience in food and agricul-
tural policy beginning with his role as executive director of the Hartford Food System
in 1979. Winne is the author of two books—Closing the Food Gap: Resetting the Table in
the Land of Plenty and Food Rebels, Guerilla Gardeners, and Smart-Cookin’ Mamas—both pub-
lished by Beacon Press.




                                 This report was written
                               over the 2012 calendar year
                             and published in November 2012

				
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